
    In the Matter of the Application of Charles M. Barrett and Henry Hart to Lay Out a Highway, Partly in the Town of Wilmurt, in the County of Herkimer, and Partly in the Town of Morehouse, in the County of Hamilton, and to Assess the Damages. Charles M. Barrett and Henry Hart, Respondents; William S. De Camp, Appellant.
    
      Highway Law■—an order made at Special Term setting aside the report of commissioners appointed to determine as to \its necessity, and to assess the damages in case a highway is proper, and appointing new commissioners is appealable — the. Supreme Court does not home jurisdictipn where the highway is in two counties, unless the highway commissioners first meet and certify the fact of their disagreement.
    
    Upon an appeal by William S. De Camp, a land, owner, from an order of the Special Term vacating the decision of three commissioners appointed to determine as to the necessity of, and in- case it existed to assess the damages occasioned by, the laying out of a highway partly in the town of Wilmurt, in the county of Herkimer, and partly in the town of Morehouse, in the county of Hamilton, and appointing new commissioners, it .appeared that the proceeding was taken, under the Highway Law (Chap. 568 of 1890); that the commissioners of highways of the two towns, in the two counties, had not met, as the statute requires, on five days’ written notice, “to make their determination in writing upon the subject of their differences ” in the matter, and, consequently, had not certified the fact of their disagreement; and that all the commissioners appointed in the first instance were residents of the county of Herkimer, although not of the town of Wihnurt. These commissioners reported the highway to be necessary, and assessed the damages occasioned thereby to the land owners, and made a report, the confirmation of which at Special Term was opposed upon the ground that the commissioners resided in the county of Herkimer, whereas, under the statute, all should have resided out of the counties through which the highway passed; and, for the further reason, that the court had no jurisdiction in the matter because the commissioners of thé towns had not previously met and certified to their disagreement..
    At Special Term the first objection was sustained and the second was overruled, and the court appointed new commissioners who were non-residents of the counties in question and directed them to proceed as under the former order.
    
      Held, that the order was not final, an appeal from a decision of the Special Term of the Supreme Court being authorized by sections 1356 and 1358 of the Code of Civil Procedure;
    That, construing sections 94 and 96 of the Highway Law together, it was the evident intention of the statute to require a meeting of • the highway commissioners of the towns in the different counties and a certificate of their disagreement as a condition precedent to the exercise of jurisdiction upon the part of the Supreme Court in the appointment of commissioners;
    'That, as this had not been done, the Special Term had no power in the premises.
    Appeal by William S. De Camp, a land owner, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Herkimer on the •31st day of December, 1895, vacating the decision of three commissioners theretofore appointed by- the Supreme Court in .the matter •of laying out a highway and assessing the damages occasioned thereby, and appointing three new commissioners to determine as to the necessity of the proposed highway and to assess the damages ■occasioned thereby, if the road was decided to be necessary, with notice of an intention to bring up for review, upon such appeal, an •order made at the Oneida Special Term on the 5th day of June, 1895, appointing the first commissioners, whose decision was acted upon by the said order entered December 31, 1895.
    The appellant appealed from the order of December 31, 1895, <c on the ground that the Special Term had no jurisdiction to order a rehearing and to appoint any commissioners in said proceeding.”
    
      
      C. D. Adams, for the appellant.
    
      Devendorf & Smith, for the respondents.
   Ward, J.:

The premises upon which the highway was sought to be laid out in this proceeding are located' in the counties of Herkimer and Hamilton. The Special Term of the Supreme Court on the 5th of June,. 1895, made an order upon the petition of Charles M. Barrett, of the town of Wilmurt, Herkimer county, and Henry Hart, of the town of Morehouse,. Hamilton county, appointing three commissioners to decide upon the necessity of the highway and to appraise the damages to be paid to the owners of the land through which the highway passed, in case they determined that such highway was necessary. The proposed highway passed through the lands of the appellant herein, and he objected to the making of this order, among other things, for the reason that under Highway Law (§ 94 of chap. 568 of the Laws of 1890) the court had no authority to appoint such commissioners, for the reason that it did not appear that the commissioners of highways of the two towns in the said two counties had. met upon the subject of such highways and disagreed in relation thereto, and that the fact of their disagreement' had not been certified to the Supreme.Court-as required by the said section of the Highway Law. The papers, upon said motion did not disclose that this had been done, and the counsel for the. respondent in the argument of this appeal admitted that no such meeting had occurred nor certificate of disagreement been made.

That portion of section 94 which affects this question reads as .follows:

“ That when the commissioners of highways of any town * * * shall differ with the commissioners of highways of any other town * * * in the same county relating to the laying out of a new highway * * * extending into both towns * * * or when commissioners of highways of a town in one county shall differ with the commissioners of highways of a town * * * in another county relating to the laying out of a new highway * * * which shall extend into both counties, the commissioners of highways of both towns * * * shall meet on five days’ written notice, specifying the time and place, within some one of such towns * * * given by either of such commissioners * * * to make their determination in writing upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their disagreement to the County Court of the county, if the proposed highway is all in one county, or if in different counties, * * * to the Supreme Court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town * * where the highway is located; or, if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and, upon due notice ,to all persons interested, view the proposed highway, * * * ' administer all necessary oaths and take such evidence as they shall deem proper, and shall decide (subject to the approval of the court as hereinafter provided) all questions'that shall arise on the hearing as to the laying out * * * of such highway, its location, width, grade and character of roadbed, or any point that may arise relating thereto; and if they decide to open * * * highway, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the land through which such new * * * highway is proposed to pass, and shall report such evidence and decision to such court with their assessment of damages, if any, with all convenient speed. On the coming in of such report the court may, by order, confirm, modify or set aside the report in whole or in part, and may order a new appraisal by the same or other commissioners, and shall decide all questions that may arise before it.”

The court disregarded this objection and appointed three commissioners. These commissioners examined the route of the proposed highway, and took testimony as to the necessity therefor, and assessed the damages of the land owners, and upon such proceeding the appellant, by his counsel, appeared and interposed an objection as to the jurisdiction of the court and the commissioners as above stated. The commissioners disregarded the objection and proceeded to obey the order appointing them, taking evidence and making their report to the court as required thereby. All three of these commissioners were residents of the county of Herkimer, but none of them resided in the town of Wilmurt. These commissioners reported the highway necessary, and assessed the damages to the land owners, and their report, with the proceedings had before them, was submitted to the Supreme Court at the Onondaga Special Term on the 19th of October, 1895. The respondents moved for confirmation of the same, when the land owner, the appellant herein, objected, among other things, that the court had not jurisdiction to confirm such report by reason of the fact that the court appointing the commissioners had not obtained jurisdiction to do so for the reason above stated, and for the further reason that the commissioners resided in the county of Herkimer, whereas, under the statute cited, they should all of them have resided out of the counties through which the highway passed.

The learned judge at Special Term overruled the first objection, but sustained the objection as to the residence of the commissioners, and appointed new commissioners to proceed as under former order, all of whom were non-residents of the counties affected by the proposed highway. An order was made pursuant. to such determination, and from that order an appeal was taken by the-land owner, and in his appeal he seeks to bring up for review the first order appointing the commission ere as well. We consider it-important only to pass upon the question of jurisdiction raised by this appeal.

The respondents claim that the order of October nineteenth is-final,- and cite The Matter of De Camp (77 Hun, 478). In that case it was held under section 89, Highway Law, that when an appeal was taken from the County Court (Tompkins county) in a highway proceeding, upon the merits, the decision of the County Court was final, and no appeal could be- taken from this order; and the respondents also contend that, by section 96 of the Highway Law, the Supreme Court obtained jurisdiction, notwithstanding the failure of the highway commissioners to meet and certify as required by section 94 of that law.

. We cannot sustain either of these contentions. In the case cited-no question of jurisdiction in the County Court arose. The proceeding was to lay out the highway in the county of Tompkins. The Highway Law imposes- no such limitation upon the right of appeal from the Special Term of the Supreme Court, as in the case' of the County Court Section 1356 and 1358 of Code of Civil Procedure authorize this appeal.

Section 96 of the Highway Law, after providing for the services. of notice upon an application to lay out a highway in two or more towns upon the commissioners of each town, provides:

“ The commissioners appointed by the court shall determine the amount of damages to be paid by each town, and, when the towns are in different counties, the applications, for the appointment of commissioners, shall be made to a Special Term of the Supreme Court, held in the district where the highway, or some part of it, is located; and the same proceedings shall thereafter be had in the Supreme Court of such district, as are authorized by this chapter to be had in the County Court.”

This section must be construed in connection with section 94 above quoted. The Legislature in 1890 made a thorough revision of the highway laws upon the subject of laying out, altering and discontinuing highways, and cast the primary duty upon the commissioners óf highways of the towns through which the proposed highways is to pass, in case the highway passes through different towns or .counties, of determining important questions preliminary to the application to the court for the appointment of commissioners. Section 94 plainly requires the meeting of these town commissioners and their certificate of disagreement in cases where the proposed highway passes through different towns of the same county, and, also, in cases where it passes through different counties. In the former case the application, as we have seen, for the appointment of commissioners must be made to the County Court; in the latter case, for obvious reasons, to the Supreme Court. This makes the action of the local commissioners and their certificate of disagreement jurisdictional. The County Court in the one instance, and the Supreme Court in the other, obtains no right to appoint commissioners unless such meeting oceurrred and the certificate is presented.

Section 96 does not conflict with section 94. Its provisions are simply for. the purpose of carrying out in detail and in substantial action the requirements of section 94.

We have reached the conclusion that the objection to the jurisdiction of the Special Term we have considered is fatal, and that the order as appealed from should be reversed, but without costs to either party.

All concurred.

Orders reversed, without costs to either , party.  