
    The People ex rel. John L. Cook et al., App’lts, v. Egbert H. Hildreth et al., Resp’ts.
    
      (Court of Areals,
    
    
      Filed May 5, 1891.)
    
    1. Highways—Appeal prom order op commissioners laying out road— Certiorari—Code Civ. Pro., § 3125.
    The bringing of an appeal from the order of commissioners laying out a highway does not suspend the running of the statute of limitations contained in § 2125, Code Civ. Pro., requiring that a writ of certiorari to review such determination be brought within four months after it becomes Dinümg on the relator or the person whom he represents.
    
      2. Same.
    There is nothing to prevent a relator from taking both an appeal from an order of the commissioners and suing out a certiorari at the same time, and pursuing both remedies concurrently.
    Appeal from judgment of the supreme court, general term, second department, affirming order of commissioners laying put a highway.
    
      B. K. Payne, for app’lts; E. A. Carpenter, for resp’ts.
   Andrews, J.

Section 2125 of the Code of Civil Procedure requires that a writ of certiorari to review a determination must "be granted and served within four calendar months after the determination "becomes binding upon the relator or the person whom he represents, except where the relator or his representative is under some one or more of the disabilities specified in § 2126.

The determination of the commissioners laying out the highway, sought to be reviewed by the certiorari in this case, was made, recorded and posted April 30, 1887. The writ of certiorari was not issued until April 24, 1888, and not served until May 4, 1888. The relators were under none of the disabilities specified in § 2126, and the application for the writ not having been made until nearly a year after the order of the commissioners had been made, the statute would seem to be a complete defense to this proceeding.

But the relators rely upon certain subsequent proceedings which, as is claimed, suspended during their pendency the running of the statute. On the 3rd day of June, 1887, an appeal was taken by the relators from the order of the commissioners, and referees were duly appointed pursuant to the statute, who on the 29th day of March, 1888, made their decision, affirming the order of the commissioners laying out the highway. It is claimed that an appeal suspends the power of the commissioners, and that until their acts are affirmed they cannot open the road, and such is the rule. Clark v. Phelps, 4 Cow., 190. Upon this the further claim is based that the order of the commissioners laying out the road did not become “ final and binding upon the relators ” until the appeal was determined, and that in counting the time given for the granting of the writ of certiorari, the period during which the appeal was pending should be deducted. This claim is, we think, inadmissible. The order made by the commissioners was a final order. It was binding upon the relators and upon every person so long as it remained unreversed, provided the commissioners had jurisdiction.

The questions presented for determination upon an appeal from an order of commissioners and those brought up by a writ of certiorari are not the same. There is in a general sense the distinction which exists between a review by courts of questions of fact and law. The statute authorizes an appeal in order that there may be a reconsideration by another tribunal of the merits of •the application for laying out a highway, in the nature of a review of the action of the commissioners. The referees may consider the question of the necessity of the proposed highway, whether it is required by the public interests and all circumstances bearing upon the expediency of laying it out, and they may reverse or affirm the action of the commissioners as in their judgment they may determine. They are confined to the examination of the case on the merits, and they are to proceed upon the assumption that the order of the commissioners is valid. Commissioners v. The Judges of Orange County, 13 Wend., 432; People v. Judges of Suffolk County, 24 id., 249; People ex rel. Hubbard v. Harris, 63 N. Y., 391.

The office of a writ of certiorari is quite different. The scope of the writ and the questions which may be determined thereon are defined by the statute. Sec. 214Q. The statute has extended the operation of the writ beyond what it had at common law. Not only may the court inquire as to the jurisdiction of the body or officer making the determination which is the subject of review, .and whether it has pursued the mode required by law, but also whether any legal rules have been violated to the prejudice of the relator, and it may examine the facts so far as to ascertain whether the determination was supported by evidence, or was against the preponderating weight of evidence.

There is no qualification in § 2125 of the Code, or in subsequent sections, which prevents the application of the four months limit in a case like this.

There is nothing to prevent a relator from taking both an appeal from an order of the commissioners and suing out a certiorari at the same time and pursuing both remedies concurrently. The determination of the appeal, where the order is affirmed, does not establish the legality of the action of the commissioners, and if a relator may await the termination of the appeal before suing out the certiorari, serious delay would in many cases be occasioned.

We think the four months limitation is a bar to this proceeding and the order should, therefore, be affirmed.

Order affirmed, with costs.

All concur. 
      
       Affirming 24 N. Y. State Rep., 458.
     