
    People ex rel. Sammis v. Board of Supervisors.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1890 )
    Highways—Establishment by Statutory Proceedings.
    Since the amendment of the general highway law of New Tork, by Laws 1873, o 773, prohibiting the laying out of a road through buildings, without consent of the owner, unless the commissioners of highways certify that the public interest will be greatly promoted thereby, the board of supervisors have no power to appoint special commissioners to lay out such a road, under Laws N. Y. 1838, c. 314, § 1, subd. 4, and Laws N. Y. 1848, c. 164, which authorized them to make such appointment, when satisfied that the "road was important, and that the authority of the commissioners of highways could not or would not be exercised for the purpose.
    
      Certiorari on the relation of John M. Sammis to the board of supervisors ■of Queens county to review an order of the board appointing special commissioners to lay out a highway in the village of Oyster Bay, through premises of relator, on which orb buildings used for purposes of trade. 2 Rev. St. N. Y. (7th Ed.) pp. 1238, 1239, § 57, providing that “no public or private road shall be * * * laid out through any buildings, * •* * without the consent of the owner, ” was amended, by Laws N. Y. 1873, c. 773, by adding the words, “ unless the commissioners of highways shall, on application duly made, after five days’ notice to the owner, or, if he be a non-resident of the town, to the occupant of said premises, certify to the county judge that the public interest will be greatly promoted by the laying out and opening of such road,” etc. Laws N. Y. 1838, c. 314, § 1, subd. 4, gave the board of supervisors of each county power, among other things, “to appoint special commissioners to lay out public highways in those cases where they shall be satisfied that the road applied for is important, and that the authority now conferred by law upon commissioners of highways cannot or will not be exercised to-accomplish the laying out of such road. ” Laws N. Y. 1848, c. 164, § 1, provided that such power “shall not be exercised by any board of supervisors,” unless the applicant therefor should prove service of a notice in writing, as-prescribed, to the commissioners of highways of the town.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Thomas Young, for relator. A. N. Weller, [Charles R. Street, of counsel,) for respondents.
   Pratt, J.

It seems plain that, prior to 1873, the proposed highway could not have been laid out over the relator’s property, without his consent. That act only authorized such a laying out upon the certificate of the commissioners of highways. Laws 1873, c. 773; Thomp. Highw. (3d Ed.) p. 220; 2 Rev. St. (Banks’ 7th Ed.) pp. 1238, 1239. In this case, no such certificate was obtained, but was refused by the commissioners, and there was therefore no power vested in the board of supervisors to appoint commissioners, and the commissioners so appointed had no power to lay out the road. This road ‘falls under the act of 1873, and under the previous act of the law of 1838, as amended by chapter 164 of Laws of 1848. The law of 1873 was made expressly to apply to such an application as this, and it contains an express prohibition against laying out such road, except upon the condition before referred to, viz., certificates of commissioners of highways. Whatever may have been the powers of the board of supervisors prior to 1873, it is plain-that, since that act, either the owner’s consent or the certificate of the highway commissioners is essential to the laying out of such a road. It cannot be claimed that the act of 1838 was intended to provide a method by which a road could be laid out through buildings, without the owner’s consent; but it was the object of the act of 1873 to effect that purpose, but only upon the conditions therein expressed. It may be further said that, irrespective of the act of 1873, we do not think a case was made for action upon the part of the board of supervisors, for the reason that it did not appear that the road was important, and that the commissioners of highways could not or would not act within the meaning of the act of 1838. If the foregoing views are correct, it follows that the action of the board of supervisors was without authority, and must be reversed.  