
    William T. Tomlinson, Appellant, v. The Town of Southampton and Others, Respondents.
    Second Department,
    March 3, 1911.
    Highways — dedication, of land for highway purposes — appeal—failure to print document in record—failure to record order laying out highway.
    Action against a town to enjoin the use of a road hordering plaintiff’s land. Evidence examined, and held, that the plaintiff’s grantor had dedicated the road as a public highway, and that it had been accepted as such by the town authorities.
    Where the plaintiff’s deed, although in evidence, is not printed in the record, the Appellate Division cannot determine that the conveyance was not made subject to the highway.
    Section 191 of the Highway Law, requiring an order laying out a highway to be filed and recorded in the town clerk’s office, is not mandatory and failure to comply therewith does not make the town a trespasser.
    Appeal by the plaintiff, William T. Tomlinson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 9th day of June, 1910, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.
    
      A. Joseph Geist, for the appellant.
    
      Timothy M. Griffing [Robert P. Griffing with him on the brief], for the respondents.
   Hibschbero, J. :

This action is brought against the town of Southampton, the supervisor and the highway commissioners of the town to enjoin the use of a road bordering the plaintiff’s land on the east at North Sea in the said town, based on the claim that the plaintiff is the owner' of the strip of land occupied by’the roadway, and that the same is not a public highway.

The claim on behalf of the defendants, which they appear to have established on the trial, is that the strip of land in question was dedicated as a public highway by the plaintiff’s grantor, that it was accepted by the town authorities, and that the road was constructed, maintained and in use at the time of the plaintiff’s purchase. There was direct evidence of such dedication in the testimony of a commissioner of highways of the town, to the effect that he had negotiated for that purpose with the plaintiff’s grantor and that oral consent was given to the building of the road on condition that the town should erect a fence on the border of the property in question the entire distance of the road, about seventeen hundred feet. The fact that the town built the road, constructed the fence and has ever since paid all the expenses for the working and maintenance of the road is undisputed. When the plaintiff purchased the property the highway was on the property, as he testified, open and in use. We cannot say that the deed which he obtained of the property was not given subject to the highway rights, for, although it was offered in evidence and marked “ Plaintiff’s Exhibit I,” it does not appear in the record.

The appellant makes a point that no order laying out the high, way was filed and recorded in the town clerk’s office, as provided by section 191 of the Highway Law (Consol. Laws, chap. 25 ; Laws of 1909, chap. 30), which revised the former Highway Law (Laws of 1908, chap. 330, § 191; Gen. Laws, chap. 19 [Laws of 1890, chap. 568], § 80, as amd. by Laws of 1897, chap. 204, and Laws of 1904, chap. 387), relating to lands dedicated to a town for highway purposes. The provision in question, however, is not mandatory; and in any event, failure to comply therewith could not operate to make the defendants trespassers.

The judgment should, be affirmed.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment affirmed, with costs.  