
    The People of the State of New York ex rel. George G. Simons and Another, Relators, v. Walter J. Dowling and Others, Individually and as Members of the Town Board of the Town of Redfield, and Another, Defendants. The People of the State of New York ex rel. George G. Simons and Another, Relators, v. Albert S. Barker and Others, Individually and as Members of the Town Board of the Town of Orwell, and Another, Defendants.
    (Supreme Court, Onondaga Special Term,
    February, 1914.)
    Highways—1 action by town officers to close — Highway Law, § 191—■ order closing highway not recorded is not final — certiorari — Code Civ. Pro., § 2125.
    All the papers in a proceeding taken by town officers to close highways, consisting of the application and consent of the town board, a release from all damages from the owners of lands taken or affected thereby and the ’order of the town superintendent closing the highway must, under section 191 of the Highway Law, be filed and recorded in the town clerk’s office; recording the release and merely filing the other papers are not a compliance with the statute.
    A record of an instrument in writing, the object of which is not only perpetuity but publicity, implies an actual transcription by the proper official, and simply leaving the paper with him for record is not a compliance with the statute which requires both filing and recording.
    An order closing a town highway not recorded as required by section 191 of the Highway Law is not final and though made and. filed in November, 1912, constitutes no ground for quashing a writ of certiorari served in October, 1913, to review the determination made in a proceeding to. close the highway, as section 2125 of the Code of Civil Procedure provides that said writ must be served within four calendar months “ after the determination to be reviewed becomes final and binding,” etc., nor should the writ be quashed en the ground of relator’s laches because at the time of the filing of the order sought to be reviewed he knew of the action which had been taken.
    Motion to quash a writ of certiorari.
    Strebel, Corey, Tubbs & Beals and Henry D. Coville, for motion.
    Davies, Johnson & Wilkinson, opposed.
   Andrews, J.

The object of these writs is to review proceedings of the town officers of Orwell and Bed-field, Oswego county, N. Y., in closing certain highways in said towns.

Section 2125 of the Code of Civil Procedure provides that, subject to certain limitations not material here, ‘ ‘ a writ of certiorari to review a determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator, or the person whom he represents, either in fact or in law.”

• Section 191 of the Highway Law provides that a town superintendent of highways may Upon written application and with the written consent of the town board make an order laying out or altering a highway or discontinuing a highway which has become useless since it was laid out, upon filing and recording in the town clerk’s office, with such application, consent and order, a release from all damages from the owners of lands taken or affected thereby * * *. An order of the town superintendent, as herein provided, shall be final.”

The papers to be filed and recorded with the town clerk are the release and application, consent and order. It is not enough to file the three latter papers and record the former. The four months within which the writ of certiorari may be applied for begins to run from the time such filing and recording is completed.

In the cases at bar these papers were not recorded. They were left with the town clerks and were retained by them; such originals constituting, as they claim, the record. But this is not so. More than mere filing is required. A record implies an actual transcription by the official. The object is not only to give the instrument perpetuity but publicity.

Nor does leaving the papers with the clerks for record comply with the statute. There must be an actual record before the order becomes final.

An examination of the case and exceptions in People ex rel. Dinsmore v. Vandewater, 83 App. Div. 54-60, will show that these precise questions were raised and decided in the Second Department. In the Court of Appeals (176 N. Y. 500) there was a reversal for other reasons. But though these questions were there also discussed upon the brief, no criticism was made in that court as to the conclusion of the court below.

Therefore, the fact that these orders were made and filed on November 30, 1912, and that this proceeding was not begun until October 18, 1913, constitutes no ground for quashing the writ.

Nor can I hold that the writ should be quashed because of any alleged laches on the part of the relator. At the time the orders were filed, or within a few days thereafter, the relator knew of the action which had been taken. But the mere delay of eleven months of an application for the writ has never, so far as I know, been held sufficient to justify its denial.

It may well be, however, that‘such a delay, coupled with such acts as would lead the defendant to believe that any adverse claims were abandoned or even a failure to. act if it led to such belief, and the fact that the defendant in reliance upon such action or non-action had expended money or had put itself in a position which it would not have otherwise assumed and which would cause loss to it if the writ were granted, would be sufficient to lead the court to refuse action. But in this case there seems to be no such condition of affairs. The relator at the time the orders of the town superintendents were given asserted what he claimed to be his rights. He claimed then and has always claimed to be the owner of land affected by the proposed action with regard to the highways in question and the defendants did whatever was done by them knowing all the facts, not relying on any supposed waiver or consent on the part of the plaintiff, but assuming that the Salmon River Power Company had the legal title to the lands to which the plaintiff laid claim.

The question as to whether the plaintiff is the actual owner of the land claimed by him and as to the effect of the deed executed by him, may be more properly considered after the return to the writ of certiorari has been made.

The motions to quash the two writs are hereby denied, with ten dollars costs in each case.

The time to make returns thereto is extended until twenty days after the filing of the orders denying the motions to quash the writs.

■ Ordered accordingly.  