
    The People ex rel. Delaware, Lackawanna and Western Railroad Company, App’lt, v. County Court of Onondaga County, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December, 1895.)
    
    1. Appeal—Party..
    A person, upon whose motion and in whose favor an order of the court has been granted, is “specially and beneficially interested” in upholding it within the meaning of section 2137 of the Code.
    8. Same.
    It is not the duty of the county court, upon the return of a certiorari in proceedings pending therein, to appear and defend its proceedings.
    8. Same.
    One, who has made application for laying out a highway and on whose application the decision of commissioners in favor of laying it out is confirmed, is properly admitted as a defendant on certiorari to review the proceedings relative to the highway.
    4. Same.
    But the highway commissioner, whose duty it is, when it shall be finally determined that the highway shall be laid out, to carry out such determination, should not be admitted as a defendant.
    Appeal from an order, directing that a petitioner for the highway proceedings and the commissioner of highways of the town of Geddes be made parties defendant to the proceedings on certiorari.
    Jenney, Jenney & Stolz and Benjamin Stolz, for app’lt; Gill, Stillwell & White, for resp’t.
   PARKER, J.

William A. Gere made application to the

county of Onondago county, under the provisions of section 83 of the highway law (chapter 568, Laws 1890), for the appointment of commissioners to ascertain and determine the necessity of a highway which he proposed to have laid out across the lands of this relator. The court appointed commissioners, and they filed a decision in favor of laying out such highway. Thereupon Gere, “ as a party interested in the proceeding,” under the provisions of section 89 of such law, applied to such court to confirm this decision. The court confirmed the decision, and the relator thereupon obtained a certiorari to review the proceedings so had. It was directed to the county court, and that tribunal is the only party defendant which appears on the record. Gere, and Armstrong, who was the commissioner of highways of the town in which the highway is situated, moved at special term to be brought in as parties to the proceedings on the certiorari, and an order was granted to that effect. From such order the relator appeals to this court.

Manifestly, it was not the duty of the county court, upon the return of the certiorari, to appear and defend its proceedings (People ex rel. Breslin v. Lawrence, 107 N. Y. 607; 13 St. Rep. 108), and manifestly it is but just that whoever is interested in upholding such proceedings should have an opportunity of being heaixl in answer to such writ. The provisions of section 2137 of the Code of Civil Procedure were designed to meet just such a case as this. It provides that in the discretion of the court “ a person specially and beneficially interested in upholding the determination to be reviewed ” may be admitted as a party defendant. We have no hesitation in holding that a person upon whose motion and in whose favor an order of the court has been granted is “specially and beneficially interested ” in upholding it within the meaning of that section, and judicial discretion is well exercised in giving him an opportunity to do so. Although not deciding the precise question here presented, the case of People ex rel. Burnham v. Jones, 110 N. Y. 509, 512; 21 St. Rep. 820, may be cited as approving these views. The question whether the highway commissioner should have been admitted as a party defendant is not so easily determined. When it shall be finally determined that the highway shall be laid out, it is, by section 98 of the highway law (chapter 568, Laws 1890), "made the duty of the commissioner of highways to carry out such a determination, and thereafter he has general charge of the same. But until such determination ip finally made he has no part or duty in the proceedings. Evidently the town is interested in them. It has to pay the damages assessed for opening the highway, and all the cost and expenses of the proceedings; but the commissioner seems to have no more interest than any other taxpayer. People ex rel. Bevins v. Board of Sup’rs of Warren Co., 82 Hun, 298; 63 St. Rep. 577. It is true that under section 15 of the highway law he may bring an action “in the name of the town * * * to sustain the rights of the public in and to any highway in the town,” and it may be that by virtue of such power he is the proper officer to apply to to bring in the town as a defendant in these proceedings; but, whether that be so or not, certainly beyond that he does not in any way represent the town, and has no authority for taking its place as a defendant in such proceedings.

It is suggested by the appellant’s counsel that, if we think the town is entitled to notice, we now make an order bringing it in as a party defendant in the proceedings. That can.be done, under the provisions of section 2137, supra, only by the court before which the certiorari is brought to a hearing. It cannot be done upon this appeal. We conclude that the petitioner, Gere, was correctly made a defendant in the proceedings, but that the commissioner, Armstrong, had no such interest as warranted his being made a party.

All concur.

So much of the order appealed from as make Commissioner Armstrong a party defendant in the proceedings is reversed. In all other respects it is affirmed. No costs are allowed to either party.  