
    In the Matter of the Application of George R. Fenton and Lee J. Frisbee, Respondents, to Lay Out a Highway in the Town of Andes, Delaware County, and to Discontinue a Highway in Said Town and County. Chloe A. Brotherton, Appellant.
    Third Department,
    May 18, 1916.
    Highways—application to alter, discontinue or lay out highway — consent of town board jurisdictional — waiver.
    The requirement of section 192 of the Highway Law, as amended by chapter 472 of the Laws of 1913, that an application to alter, discontinue or lay out a highway “ must be approved by the written consent, indorsed thereon or attached thereto, of a majority of the members of the town board,” is jurisdictional and cannot be waived by said board.
    Hence, where such consent has not been obtained, the proceeding should be dismissed.
    Howard, J., dissented.
    Appeal by Chloe A. Brotherton, landowner, from an order of the County Court of Delaware county, entered in the office of the clerk of said county on the 19th day of July, 1915, confirming the report of the commissioners herein.
    ■ Henry J. Williams, for the appellant.
    
      Barna Johnson, for the respondents.
   Kellogg, P. J.:

Section 192 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), as amended by chapter 412 of the Laws of 1913, requires that the application must be approved by the written consent, indorsed thereon or attached thereto, of a majority of the members of the town board.” This "requirement was not observed. The requirement is jurisdictional. (Matter of Laidlaw, 153 App. Div. 343.) Prior to the amendment any property owner might make the application. The amendment deprives the taxpayer of the right to apply for a highway and involve the town in expense, unless the town board consents to the application. Ho person has the constitutional right to ask that a public highway be laid, out at the expense of the town. That right naturally rests with the public officials, and may be granted or withheld from the taxpayer as the Legislature determines. It is claimed that the town board waived' this provision of the statute. The provision was made for the protection of the town and the property owners as well, and the town board could not waive it. Apparently it was willing at various times to approve of the proceedings upon certain conditions. The conditions, however, were refused, and it made no affirmative approval of the proceedings. Perhaps it did not actively oppose them. The order should, therefore, be reversed and the proceedings dismissed. Considering the manner in which the question was raised no costs are allowed.

All concurred, except Howard, J., who dissented.

Order reversed, with costs, and petition dismissed.  