
    William M. Patton, Appellant, v. J. Blackburn Miller, Respondent.
    
      Sighway — the total liability of an unsuccessful applicant for the opening of a highway is limited to fifty dollar's.
    
    The liability of an 'applicant for the opening of a highway, in case his application fails, is limited to fifty dollars by sections 83 and 88 of the Highway Law (Chap. 568, Laws of 1890, as amended by chap. 334, Laws of 1894), and where the applicant has already paid costs of parties opposing the application, as fixed by the order of the County Court, amounting to that sum, the commissioners appointed to determine upon the necessity of the highway are not entitled to recover their fees from him.
    Appeal by the plaintiff, William M. Patton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Grange on the 27th day of April, 1897, upon the decision of the court, rendered after a trial before the court without a jury at the Orange Trial Term, dismissing the complaint.
    
      Walter C. Anthony, for the appellant.
    
      Russell Headley [E. A. Brewster with him on the brief], for the respondent.
   Per Curiam :

This action is brought to recover of the defendant the fees of the plaintiff and two other commissioners (both of whom have .assigned their claims to the plaintiff) appointed to determine upon the necessity of a highway in the town of New Windsor, for the; opening of which the defendant had applied. On an appeal from an order made by the County Court, in the proceeding to open the highway (Matter of Miller, 9 App. Div. 261); we held that where the application failed, the compensation of the commissioners could not be charged on the town. We there said, wliat was doubtless true, that the commissioners of appraisal ought to be paid for their: services; but the difficulty in-the way of a recovery is that, by sections 83 and 88 of the Highway Law (Chap. 568, Laws of 1890, as amended by chap. 334, Laws of 1894), the liability of the applicant for the opening of a highway, in case his application fails, is limited to the sum of fifty dollars. This sum the defendant has. already paid,- being the amount of the costs of parties opposing the application as fixed by the'final order of the County Court, which set aside the proceedings had upon the defendant’s application. It would seem more fair had the order of the County Court applied this sum in satisfaction of the. fees of the plaintiff and his assignors, so far as it would go, instead of to the payment of the costs of the adverse parties. But the commissioners took .no appeal from the provision of the order-of the County Court in this respect. The fact seems to be that, if the application to open the highway fails, no provision is made for the compensation of the commissioners, in excess of the sum of fifty dollars, and the commissioners must be deemed to accept their appointments with knowledge of that fact The provision is of doubtful- wisdom as it would seem to offer an inducement to decide in favor of the opening of a highway for personal reasons ; that is, to obtain payment of their fees. But if we are right in our construction of the statute, the remedy must be by application to the Legislature.

The judgment appealed from should he affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  