
    The People of The State of New ex rel. Helen C. Beardslee et al. v. Henry A. Dolge, Commissioner of Highways of the Town of Manheim.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1887.)
    
    1. Highways—Proceedings in laying out—R. S., Part I, Chap. 16, Tit. 1, Art. 4, § 78—What errors do not invalidate proceedings.
    In regard to drawing the line in proceedings to alter a highway and layout a public highway across lands owned by persons, it is provided by the Revised Statutes, part I, chap. 16, tit. 1, art. 4, § 75, as amended by Laws 1881, chap. 696, § 1, that the town clerk shall deposit in the box the-names of the persons selected and returned as persons who are uninterested in the lands through which such road is to pass or be located, not of kin to. the owners thereof and draw from them the names of twelve persons and make certificate, etc. Held, that any error in the details of preparation of the-box prior to the drawing of the jury, not prejudicial to the owners of the lands, and not depriving them of any substantial right, would not destroy the jurisdiction of the commissioners to lay out out a road nor lead to a reversal of their proceedings.
    2. Same—What error will not deprive commissioners op jurisdiction.
    
      Held, that a failure to exclude from the box the names of the parties required by the statute to be excluded would not deprive the commissioners of jurisdiction, if, notwithstanding the error, no persons’ name who was interested in the real estate to be taken or of kin to the applicants, was drawn.
    3. Certiorari—Hearing is upon writ and return
    
      Held, that in proceedings to review by certiorari the action of the commissioners, the hearing must be upon the writ and return, and that an appellate-court would not review facts stated in the return where they were founded upon personal inspection and individual knowledge of a locality because such inspection and knowledge could not be recorded and reproduced
    
      S. Earl and Ward T. Lansing, for relator; C. J. Palmer, for resp’t.
   Boardman, J.

The relators have brought this writ of certiorari to review proceedings to alter a highway and lay out a public highway across their lands. The first error relied upon relates to the manner of drawing the jury by the town clerk.' The ¡Revised Statutes, as amended by chapter 696 of the Laws of 1881, section 1, provide that the clerk shall deposit in the box the names of the persons selected and returned as jurors, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and draw therefrom the names of twelve persons and make certificate, etc. The clerk did not, in the first instance, select from the list of jurors the names of those who were interested in the lands to be taken or of kin to the owners thereof, but proceeded to draw from the entire fist of jurors selected and returned for the town.

The counsel for the relators requested that the clerk first select and take from the box the names of the persons so interested or of kin to the relators before the (Rowing of the jury, which request was denied. An objection to the jury so drawn was again made, after it was drawn, and the objection was overruled. A motion to dismiss the proceedings at thó close of the hearing upon the same ground, that is, that “the jury was irregularly drawn,” was denied.

No person’s name who was interested in the real estate to be taken or of kin to the relators was drawn from the box. No further or other objection was taken to the jury as finally certified, or to the rejection of any of the jurors whose names were drawn. The return certifies that the jury as drawn was unexceptionable. The question is then presented whether the exclusion from the box of the names of jurors interested in the lands or related to the owners, before the drawing, is a jurisdictional requirement; or was the failure so to do a mere irregularity, which, in the absence of injury to the relators, may be disregarded.

The object of the law is plainly to secure a disinterested jury. The mode prescribed tends to accomplish such result. The clerk must always, in his exclusion, act informally and with more or less ignorance of such jurors as may be interested or related. If the exclusion of all such persons is jurisdictional, the failure as to one or more of them would be equally fatal. This would seem to be a dangerously technical rule without a sound or sensible basis.

In Buckley v. Drake (41 Hun, 384), an applicant for the road is held to be a competent juror on the proceeding. Yet it was held that the exclusion of the applicants from the box was not so far jurisdictional as to justify an action to restrain the commissioners of highways from entering upon the lands and opening the highway. See, also, People ex rel Downey v. Dains, 38 Hun, 43. This could not be true if the proceedings were void. The same question was under discussion in this court m the case of the People ex rel. Edwards v. Potter (36 Hun, 181), where it is held that the applicants for the road are not competent jurors, but that the failure of the clerk to deposit their names in the box, although not to be excluded under the terms of the law, was not error. It was further held that unless the relator was injured by the failure of the clerk to comply with the terms of the law in preparing the box before drawing the jurors, it would not invalidate the proceedings. The remarks of Mr. Justice Follett in the last case are •applicable to the one under consideration. We conclude that any error in the details of preparation of the box prior to the drawing of the jury, not prejudicial to the relators and not depriving them of any substantial right, would not destroy the jurisdiction to lay out the road, nor would such an irregularity lead to a reversal of the proceedings. People v. Petrea, 92 N. Y., 128; Code, §§ 2140, 723.

The relators further claim that the action of the commissioners should be reversed, becaused the proposed road runs through the barn-yard, etc., of the relators. The language of the return is an answer to such claim. It ■says: “That none of said alteration and highway passes through the buildings or barn-yard” of the relators, “nor do they pass through any yard of the said Beardslee.”

Again, the motion to dismiss the proceedings on that ground was denied, “for the reason that the survey shows that the proposed alteration passes over the top of the clay-bank, and not through any barn-yard or buildings.”

The hearing must be upon the writ and return (38 Hun, 43, supra); and the court will not review facts stated in the return when they are founded upon personal inspection and individual knowledge of the locality, because such personal inspection and knowledge cannot be recorded and reproduced. No appellate court can intelligently and fairly review a decision upon facts so ascertained. People ex rel. Mayor, etc., v. McCarthy, 102 N. Y., 643.

The commissioners and jurors personally inspected and went over the proposed road, and it is certified, after such inspection, that it did not pass through any barn-yard or buildings. We must accept such determination as true, while there is little in the evidence of Mr. Beardslee to overthrow it. The discontinuance of the old highway was an incident to the alteration and necessarily followed it. People ex rel. Bowen v. Jones, 63 N. Y., 310. There was no error, therefore, in making the discontinuance of the old road a part of the order.

The proceedings and order of the commissioner of highways must be affirmed, with fifty dollars costs and disbursements in his favor against the relators.

Follett, J., concurred in the result; Hardin, P. J., not voting.  