People ex rel. Willis v. Smith , 14 N.Y. Sup. Ct. 17 ( 1876 )

Barnard, P. J.:

The commissioners never acquired jurisdiction to make the order laying out the road in question. By statute, before they could lay out such highway, after it was certified to by the jury, they must have given three days’ notice in writing to the occupants of the land through which the road is run, of the time and place at which they would meet to decide on the application. (§ 77, art. 4, part 1, title 1, chap. 16, R. S.)

The only proof of the service of this notice is a recital in the order of the commissi on ers laying out the road, as follows : “ and notice in writing of at least three days having been given in form of law,” to * * * occupants of the land through which said highways are to run. This recital is not proof of the fact stated.

The writ of certiorari was granted for this omission, among others, on the sworn statement of one of the occupants, that he was not served with such, notice, and he is one of the persons stated in the recital to have been served. The omission to give the notice was fatal. (People v. Supervisors of Allegany, 36 How., 547; People v. Robertson, 17 id., 75; People v. Judges of Herkimer, 20 Wend., 186.)

This conclusion renders unnecessary the consideration of the other points presented.

Proceedings reversed, with costs.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Proceedings of commissioners of highways reversed, with costs.