
    The People of the State of New York ex rel. Clarence G. Dinsmore, Respondent, v. H. Fremont Vandewater and Others, Individually and as Members of the Town Board of the Town of Hyde Park, County of Dutchess and State of New York, and Walter R. McCurdy and Others, Individually and as Commissioners of Highways of the Said Town, Appellants.
    (No. 2.)
    
      Certiorari to review highway commissioners’ order closing a highway — the time within which the writ may issue runs from the date of recording the order — the failure to record the order does not invalidate it.
    
    Where an order, made by the highway commissioners of a town, closing a portion of a highway, 'is filed in the town clerk’s office, but is not recorded by him, as required by section 80 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1897, chap. 204), the failure to record the order does not invalidate the proceedings of the highway commissioners.
    In such a case the four months’ Statute of Limitations prescribed by section 2125 of the Code of Civil Procedure for the issuance of a writ of certiorari to review the determination of the highway commissioners, does not, however, begin to run until the order is recorded.
    Appeal by the defendants, H. Fremont Yandewater and others, individually and as members of' the town board of the town of Hyde Park, county of Dutchess and State of NewYork, and Walter R. McCurdy and others, individually and as commissioners of highways of said town, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, denying the defendants’ motion to quash a writ of certiorari theretofore issued in the above-entitled proceeding.
    
      Henry B. Anderson and Harry C. Barker, for the appellants.
    
      Egerton L. Winthrop, Jr. [William Jay and Flamen B. Candler with him on the brief], for the respondent.
   Goodrich, P. J.:

The relator petitioned for a writ of certiorari requiring the members of the town board and the commissioners of highways of the town of Hyde Park to certify and return to the court all their proceedings and the papers in the matter of closing a part of the New York and Albany post road in that town and laying out a new highway in lieu of the part closed.

A motion was made by the defendants to quash the writ on the ground that the order to close was recorded in the town clerk’s office on October 22, 1900, pursuant to sections 80 and 81 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1897, chap. 204), and that under section 2125 of the Code of Civil Procedure a writ of certiorari to review the determination must be granted within four months after -such determination had become final and binding on the relator, and that the relator did not file his petition until May, 1902.

The relator contends that while the order was filed in October, 1900, it was not recorded as required by section 80 of the Highway Law, and consequently that his time to apply for a writ of certiorari to review did not commence to run on the day named.

Under these circumstances, Mr. Justice Smith denied the motion, delivering an opinion which is hereto appended. We affirm the order on his opinion.

Woodwabd, Hibsohbebg, Jbnks and Hookeb, JJ., concurred.

Order denying motion to quash writ affirmed, with ten dollars costs and disbursements.

The following is the opinion of Hon. Wilmot M. Smith, delivered at Special Term:

Smith, J.:

The failure to record the order sought to be reviewed in this proceeding in accordance with the provisions of sections 80 and 81 of the Highway Law, did not under the decisions in analogous cases invalidate the proceedings. (President, etc., of Manhattan Company v. Laimbeer, 108 N. Y. 578.)

But in order to restrict the time to review the proceedings the requirements of the statute must be strictly complied with, and in this connection it seems to me significant that the town clerk is specifically directed to note the time of the recording of the order. In proceedings to review assessments by certiorari the courts have held that the statutory direction must be strictly observed to limit the time to apply for the writ. (People ex rel. Swartwout v. Village of Port Jervis, 23 Misc. Rep. 317.)

And they have also held that in order to limit the time to appeal the requirements of section 1351 of the Code of Civil Procedure must be observed with great particularity. In my opinion very strong reasons exist why a strict compliance with the statute should be exacted in these proceedings in order to foreclose the right of a party aggrieved to review the order of the highway commissioners.

The question of the right to make the order complained of may be more properly considered after the return to the writ of certiorari has been made. The time to make such return is extended until twenty days after the tiling of the order denying this motion to quash the writ.  