
    Excelsior Brick Co. v. Village of Haverstraw.
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Municipal Corporations—Alteration op Streets.
    The general act for the incorporations of villages, giving village trustees power to lay out and open new roads and streets, to. widen, change, and improve other roads, and to discontinue or alter streets, and providing that no road, street, etc., shall be opened or altered, unless all claims for damages on account thereof be releaseu, except on petition of 10 freeholders, residents of the village, (Laws 1870, c. 291, tit. 3, § 3, and tit. 7, § 1,) furnishes a substitute for the provisions of the Revised Statutes for discontinuing a highway upon the certificate of 12 freeholders; and a mere resolution of village trustees discontinuing a street, and substituting a way to which the village had no title, without any application therefor, or release of damages or petition of freeholders, is inoperative and void.
    Appeal from special term, Rockland county.
    Action by the Excelsior Brick Company against the village of Haverstraw ' to restrain the village, its officers, agents, and servants, from entering upon or interfering with certain lands claimed by plaintiff, which defendant alleged were public streets. On trial by the court without a jury, a resolution of the board of trustees of the village, purporting to order the discontinuance of portions of said streets, including the lands in question, was offered in evidence by plaintiff, and admitted, against defendant’s objection. The trial judge rendered a decision in favor of plaintiff, and from the judgment entered thereon defendant appeals.
    Reversed.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Alonzo Wheeler, (E. A. Brewster, of counsel,) for appellant. Irving Brown, (Calvin Frost, of counsel,) for respondent.
   Barnard, P. J.

The order discontinuing parts of Division and other streets in the village of Haverstraw was inoperative and void. By the Revised Statutes a road could only be discontinued upon the certificate of 12 freeholders. The charter of the village of Haverstraw is a substitute for this mode. The trustees were given power, under the general act for the incorporation of villages, “to lay out and open new roads and streets, and to widen, change, and improve other roads. Chapter 291, Laws 1870, tit. 3, § 3, subd. 25. By title 7, § 1, of the same law, the trustees can discontinue, open, or alter streets. This order provides for an alteration of Division street, and also for parts of Liberty street and Allison avenue. An alteration can only be made on the petition of 10 freeholders, residents of the village, unless all claims for damages on account of the alteration be released without remuneration. The order is not accompanied by this release, and there was no certificate of freeholders. It was a mere resolution of the trustees discontinuing a highway, and substituting a way to which the village had no title. The resolution in its effects destroyed the symmetry of the village street system, and without any right did so, by the substitution of a narrow, circuitous, and unsightly substitute. Those lands lying on Division steet, altered out of existence, are deprived of all compensation. There was no application, certificate of freeholders, and opportunity to be heard before the jury, and no application or opportunity to be heard under the village charter. The judgment should be reversed, and a new trial granted, costs to abide event.  