Huntley v. Mills

• Decision Date: 20 March 1888
• Citation: 15 N.E. 886,109 N.Y. 69
• Parties: PEOPLE ex rel. HUNTLEY v. MILLS, Commissioner of Highways.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 69

15 N.E. 886

PEOPLE ex rel. HUNTLEY

v.MILLS, Commissioner of Highways.¹

Court of Appeals of New York.

March 20, 1888.

Appeal from general term, supreme court, Third department.

Action by the people of the state of New York ex rel. George W. Huntley, for mandamus to compel Ed ward G. Mills, commissioner of highways, to open and work a previously laid out road, and to attach same to some road-district. The road had been laid out by a former commissioner, upon petition of freeholders of the town, by giving notice to owners of land through which the road was to run, etc. Mandamus granted, and defendant appeals.

Waldo, Grover & McLaughlin, for appellant.

S. H. Bevins, for respondent.

PER CURIAM.

We concur with the general term that the question as to the legality of the proceedings to open the road in controversy cannot be raised by the defendant upon the facts shown in this record. Proceedings were taken to open the road, and the owners of the land and all others interested had an opportunity of being heard. A jury drawn for that purpose appraised the damages to the owners of the land to be taken, and the amounts thus appraised were subsequently audited and allowed by the town auditors, assessed upon the property of the town, collected, and paid to and received by the said owners, and the highway commissioner took possession of the land, and paid out some money thereon, and performed labor upon it, for the purpose of making it fit and proper for public travel. Upon these facts, we are clear that the defendant cannot now raise the question that such proceedings to take the land, and lay out the highway, were illegal.

After the submission of the motion for a mandamus to the special term, and before its decision thereon, there was sent to the judge who held the term, what purported to be a copy of an order made by the commissioners discontinuing the road in question; the order bearing date some days after the submission of this motion for a mandamus. It does not appear that the relator had any knowledge of this order, and the judge at special term (as it appears from his opinion) passed over the question whether the order could be properly presented or considered by him, and did so far take cognizance of it as to hold it furnished no answer to this proceeding, and awarded the mandamus. The general term (as also appears from its opinion) refused to take the order into consideration, although stating that very probably it would...