CORNELL LAW LIBRARY (JornfU IGatu irl^nnl library KFN5787!iS™19oT™'""-"'"^ "^'?iiiii°]MiiiSi!W.?.,,if,S!?.',?&^ Yo 3 1924 022 869 584 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022869584 MASON ON HIGHWAYS CONTAINING THE New York Highway Law All Constitutional and General Statutory Provisions Relating to Highways, High- way Officers, their Powers and Duties, INCLUDING The Good Roads Law of 1898 and 1901 AND The Motor Vehicle Law of 1904 ALL AS AMENDED TO THE END OF THE SESSION OF 1904 WITH ANNOTATIONS AND FORMS THIRD EDITION By HERBERT DELAVAN MASON OF THE NEW YORK CITY BAR —. BANKS & COMPANY AlvBANY, N. Y. 1904 COPYRIGHT, 1902 BY HERBERT D. MASON COPVRIGHT, 1903 BY HERBERT D. MASON COPYRIGHT, 1904 BY HERBERT D. MASON PREFACE The extensive changes in, and additions to, the Highway Law and related laws made by the Legislature of 190-1, justifies the belief that a third edition of this work will prove useful. These statutory changes — some fifty in number — have been embodied in the present work. The 'decisions bearing upon the Highway Law and related matters reported prior to the present month have also been included. The forms have been revised to conform to the statutory changes and new forms added Avhere necessary. The index and tables of contents, cases and forms have been modified and added to to accord with the other changes. For convenience of reference and as indicative of the general nature of their provisions, section headings have, in numerous in- stances, been prefixed to sections which were enacted without headings of any kind. Such section headings have, however, in all cases, been enclosed in brackets, in order that there may be no misunderstanding as to the form or contents of the original enactment and, also, that there may be no unwarranted attempt to apply the customary rules of interpretation based upon the effect to be given section headings assigned by legislative authority. I acknowledge with pleasure my obligation to Messrs. Robert Louis Hoguet and Henry F. "Wolff, of the New York city bar, for much valuable assistance in the preparation and completion of this edition. H. D. M. New Yoek City, June, 1904. PREFACE TO FIRST EDITION. The form which this work has assumed readily suggests the purposes with which it is written : First, to furnish an annotated edition of the Highway Law of the State of New York, as enacted by the Legislature of 1890, in chapter 19 of the General Laws, and as amended to the close of the session of 1902; second, to bring together in one volume all the various statutes relating to highways, including not only the General Highway Law, but also all constitutional provisions and the many independent gen- eral statutes which relate to that subject; and, third, to furnish forms suitable for proceedings under these laws. It has been sought to attain the first purpose of the work by a careful examination of all cases involving questions of highway law, including not only the recent decisions, but the older ones as well, the examination of the latter class being necessary to a larger degree than would have been conceived possible, owing to the fact that many sections of the law stand to-day, in substance, and, in many cases, in almost exact phraseology as in the Revised Statutes of 1828. This condition not only renders the inclusion of the older cases desirable, and, in the absence of later authorities, absolutely necessary, but it also leads to another result even more important to the practitioner and which would not be of such moment in the consideration of a statute of more recent origin — that is the many conflicting decisions resulting from over three- quarters of a century of interpretation of these statutes by the courts. In some instances the courts have, upon considering the older line of decisions, felt that changed conditions warranted a departure from the doctrines formerly announced; while in other instances the older decisions have been, in effect, overruled without apparent consideration by court or counsel, due, doubtless, to the belief that probable statutory changes has rendered them inappli- iv Peeface. cable — a view of the matter which has entailed a great amount of labor in an endeavor to reconcile the conflicting interpretations. Particular care has been taken to note these conflicts and to call attention to any reason assignable for them, if any such seems to exist. The second purpose of the work, namely, to include all constitu- tional and general statutory provisions concerning highways, has been attempted by incorporating such provisions into the body of the work where it has seemed desirable, and in all other cases by including them in a section of the work immediately following the Highway Law proper. The omission of many general acts from the revision, and the enactment since the revision of many general independent acts supplementary to, and, in some instances, controlling of the General Highway Law, have rendered it impos- sible to rely safely upon the general law as the final expression of the legislative will. It has, therefore, been necessary to make frequent references to those acts in connection with the sections of the Highway Law with which they should be read. Particular care has been taken in the preparation of the forms included in the work, and, in many instances, reference to appeal books in the Court of Appeals has provided a test of their suJ05- ciency, which, it is hoped, has added much to their vahie. New Yoek City, August, 1902. H. D. M. The Highway Law and certain others of the statutes relating to highways having been amended by the Legislature of 1903, this work has been completely revised in its text, forms, index, etc., to conform with such amendments. H. D. M. New Yoek, July, 1903. TABLE OF CONTENT'^. AW LlBx^Ai^l PAGE. Table of cases cited xiii The Highway Law 1-166 ARTICLE 1. Highway Officebs; Thbie General Powers and Duties. Section 1. Short title 3-3 2. Treasurer of highway comiaissioiiers 3-4 3. Powers of one commissioner 4 4. General powers of commissioners 4-16 5. Mile-stones and guide-boards 16-17 6. Koad machines and implements 17-18 7. Stone crushers and materials 18-19 8. Custody of stone crushers 19 9. Additional tax 19-20 10. Extraordinary repairs of highways or bridges 20-22 11. Auditing expense thereof 22 11a. Damages for change of grade 22-23 12. Accounts, how made out 23-24 13. Unsafe toll-bridge 24-25 14. Drainage, sewer and water pipes in highways 25-26 15. Actions for injuries to highways 26-B7 16. Liability of towns for defective highways 27-37 17. Action by town against commissioners 38 18. Audit of damages without action 38-39 19. Report of commissioners 39-40 20. General duties of overseers 40-42 21. Opening obstructed highways 42-44 22. Penalties against overseers 44-45 83. Penalties, how collected 45 24. Compensation of overseers 45-46 85. Division of tovim into highway commissioner districts 46 86. Duties of commissioner in each district 46-47 ARTICLE II. Assessment foe Highway Labob. Section 30. Meetings of commissioners 47-48 31. Lists of inhabitants 48 32. Non-resident lands 48-49 vi Table of Contents. rACi. Section 33. Assessment of highway labor, how made 49-51 34. Copies of list delivered to overseers 51 35. Names omitted 51-52 36. Appeals by non-residents 52 37. Credit on private roads 52 38. Certain assessments to be separate 52-53 39. Tenant to deduct assessment 53 40 Reassessment in case of neglect 53 41. Omissions of assessors corrected 53 42. New assessments by overseers 53-54 43. Sidewalks and trees 54-55 44. Abatement of tax for shade trees 55 45. Sidewalk tax anticipated in towns under labor system; sidewalks in towns under money system, 55-56 46. Certificate of anticipation 56 47. Transfer of certificate 56-57 48. Abatement of tax for watering trough 57 49. System of taxation defined 57 50. Town may change its system 57 51. Vote thereon 58 52. When change to take effect 58 53. Annual tax under money system; certain villages exempt therefrom 58-60 53a. Duty of highway commissioners in certain towns . . 60-61 53b. State to share expense of maintaining certain county roads 61 54. Adoption of county road system 61-62 95. County engineer 62 55a. [Classification of highways] 62 55b. [Maintenance of improved highways] 63 55e. [Compliance with directions of engineers and sur- veyor] 64 55d. [Compelling appointment of county engineer] 64 56. Apportionment of expenditures for county roads.. 64-65 57. Bonding county for county roads 65 58. Jurisdiction of county roads, money system to pre- vail in tovm of a county adopting county road system 65-66 59a. Proceeds of county bonds; use of surplus 66 ARTICLE in. The Duties of Ovebseebs of Highways and the Pebfobmance of Highway Labob. Section 60. Notice to work. 66-67 61. Notice to non-residents 67 Table of Contents. vii Section 62. Commutation 68 63. Team.s and implements 68 64. Substitutes 68-69 65. Penalties for neg'lect to work or commute... 69-70 66. Assessment for unperformed labor 70 67. Penalty for refusal of overseer to provide list • 70-71 66. Collection of arrearages for unperformed labor... 71 69. Annual return of overseers 71-72 70. Noxious weeds in highway 73 71. Overseers or commissioners of highways to notify ovmer s or occupants to remove weeds 72-73 72. Abatement of tax for removal of fence 73-74 73. Abatement of tax for street lamps 74 74. Bebate of tax for using wagon tires of certain width 74-75 ARTICLE IV. LATII70 Out, Altebing and Discontinuing Highways and Laying Out Pbivate Roads. Section 80. Highways by dedication 76-78 81. Survey 79-80 82. Application 80-82 83. Application for commissioners 82-83 84. Appointment of commissioners and their duties . . 83-84 85. Notice of meeting 84r-85 86. Decision of commissioners in favor of application . . 86-90 87. Damages in certain cases, how estimated 90-91 88. Decision of commissioners denying application.... 91-98 89. Motion to confirm, vacate or modify 92-96 90. Limitations upon laying out highways 96-100 91. Laying out highways through burying grounds... 100 92. Costs, by whom paid 100-101 93. Damages assessed, and costs to be audited 101-102 94. When officers of different towns disagree about highways 102-104 95. Difference about improvements 104-105 96. Highway in two or more towns 105-106 97. Laying out, dividing and maintaining highway upon town line 106-107 98. Final determination, how carried out 107-109 99. Highways abandoned 109-111 100. Highways by use 111-113 101. Fences to be removed 113 102. Penalty for falling trees 113 103. Fallen trees to be removed 114 viii Table of Contents. PAGB. Section 104. Penalty for obstruction or encroacliment 114-118 105. How removed and liability for not removing 118-123 106. Private road 124 107. Jury to determine necessity and assess damages . . 134-125 108. Copy application and notice delivered to applicant, 125 109. Copy and notice to be served 125-126 110. List of jurors 126 111. Names struck ofE 126 112. Place of meeting 126 113. Jury to determine and assess damages 127 114. Their verdict 127 115. Value of highwray discontinued 127 116. Papers to be recorded in the tovyn clerk's office... 127-128 117. Damages to be paid before opening the road 128 118. Pees of officers 128 119. Motion to confirm, vacate or modify 128-129 120. Costs of new hearing 129 121. For what purpose private road to be used 129-130 122. Highways or roads along division lines 130 133. Adjournments 130 ARTICLE V. Bridges. Section 130. Liability of towns for construction and care of bridges; liability of counties 131-133 131. Additional county aid (repealed) 134 132. Statement of expenses 134 133. Supervisors to levy tax 134 134. Joint liabilities of towns and their joint contracts, 134-135 135. Refusal to repair 135-136 136. Proceedings in court 136-137 137. Commissioners to institute proceedings 137 138. Their duty 137 139. Commissioners to report 137-138 140. Appeals 138 141. Power of court on appeal 138 142. Refusal to repair bridge 138-139 143. Penalty and notice on bridge 139-140 144. Offense 140 145. Iron bridges 140 ARTICLE VI. Miscellaneous Pbovisions. BectionlSO. Papers, where filed 141 151. When commissioners do not act 141 152. Costs on motion 141-143 Table of Contents. ix rAGS. Section 153. Injuries to highways 143 154. When town not liable for bridge breaking 143 155. Steam traction engines on highway 143 156. Trees, to whom they belong 143-144 157. [Carriages meeting to turn to the right, etc.] 144-148 158. Intemperate drivers not to be engaged 148 159. Drivers, when to be discharged 148 160. Jjeaving horses without being tied 149 161. Owners of certain carriages liable for acts of drivers 149 163. Term " carriage " defined 149-150 163. Entitled to free use of highways 150-151 164. Penalties, how recovered 151-153 165.* Extent of this chapter 152 165. Stone and rubbish not to be dumped in highways. . 153 166. Kegistration by owners of automobiles (repealed). 152 167. Use of highways by automobiles (repealed) 152 168. Brakes and lamps on automobiles (repealed) 152 169. Stop automobile on signal (repealed) 153 169a. Licenses or permits for automobiles (repealed) .... 153 169b. Penalties (repealed) 153 ARTICLE VII. Regulation or Eeebies. Section 170. Licenses 154-155 171. Undertaking 155 172. Appendages for rope ferries 155 173. Superintendent of public works may lease right of passage 155 174. When schedules to be posted 156 ARTICLE VIII. County Supebvision of Highways. Section 180. Adoption of article 156-157 181. County engineer; deputy 157 183. Duties of county engineer 157-158 183. Contracts for the construction of highways 158-159 184. Construction and repair of bridges 159 185. Examination of bridges by county engineer 159-160 186. Issue of town bonds for the erection of bridges 160 187. Reports of commissioners of highways 160 188. Report of county engineer 160-161 189. Adoption of resolution to return to former system, 161 * So in the original. X Table of Contents. ARTICLE IX. Eepealinq and Othek Laws. PAGE. Section 200. Laws repealed 163 201. Saving clause 162 202. Construction 152-163 203. When to take efEect 163 Schedule 164-166 CONSTITUTIONAL AND GENERAL PROVISIONS RELATING TO HIGHWAYS. Constitution or the State or New Yobk. Article I, section 7 167 Article in, section 18 167-168 Article XIII, section 1 168 The County Law. Section 12. General powers 169 60. Limitation of article 169 61. County highways and bridges 169 62. Location and construction of bridges 169-170 63. County aid to towns for the construction and repair of bridges 170 64. Construction by county of destroyed bridges 170-171 65. Apportionment of expenses when a bridge is inter- ' , sected by town or county lines 171 66. County's share of expenses to be raised and paid to the commissioners of highways of the town 171-172 67. May authorize a town to construct a bridge outside of a boundary line 172 68. Bridges over county lines 172-173 69. Authorizing towns to borrow money 173-174 69-a. Authorize towns to purchase roads or toll bridges, 174 70. The raising and expenditure of moneys 174 71. Streets outside of city limits 175-176 72. Survey and records of highways 176 73. Regulation of toll rates 176 74. Highways in counties of more than 300,000 acres of unimproved land 177 75. Appropriation of certain non-resident highway taxes 177 76. Balance of State appropriations 177 77. Alteration of State roads X78 78. Further powers 178 Table of Contents. xi rAcx. Section 79. Powers as to tires on vehicles 178 80. Use of abandoned turnpikes, etc 178 81. Definition of words used in this article 178 The Town Law. Section 12. Election of officers 179 13. Term of office 179 15. Commissioners of highways 180 21. Fence viewers 180 22. Powers of biennial town meetings 180 23. Special town meetings 181 36. Balloting: electors in incorporated villages, when not to vote on highway questions 181-182 51. Oath of office 182 55. Eefusal to serve as overseer of highways or pound- master 182 66. Town officers to administer oaths 182 63. Undertaking of commissioners of highways 182-183 64. Eesignation of town officers 183 65. Pilling of vacancies 183 66. Porm of undertaking and liabilitj' thereon 183 80. General duties of supervisor 183 82. Fires in woods 183-184 84. Delivery of books and papers by outgoing officers to successor 184 161. Meeting of town board for receiving accounts of town officers 184-185 178. Compensation of town officers 185 184. Borrowing of amount of special appropriations .... 185-186 Laws 1897, chapter 481, section 21, An act to amend the Town Law 186-187 Laws 183S, chapter 300, An act to enlarge the powers of commis- sioners of highways 187-188 Laws 1853, chapter 62, An act to regulate the construction of roads and streets across railroad tracks 188 Laws 1898, chapter 115, An act to provide for the improvement of the public highways. (" Good Roads Law.") 189-196 Laws 1901, chapter 240, An act supplementary to the above 196-201 Laws 1891, chapter 309, An act to authorize overseers of high- ways to acquire gravel for highway purposes 202-203 xii Table of Contents. FACI. Laws 1895, chapter 717, An act to compel highway cominissioiiers to file their contracts in certain cases 203 Laws 1890, chapter 291, An act for raising additional money to prevent snow blockade of highways 204-205 Laws 1870, chapter 311, An act to provide for repairing and keep- ing in order highways, streets and roads between cities, towns and villages 205-206 Motor Vehicle Law 206a-20ei Table of forms 207-210 Forms 211-304 Index 305-322 TABLE OF CASES CITED. A. FAGS. Acker t. Town of New Castle 8, 29 Adams, Matter of 86 Adams v. Kivers 91 Adolph V. Central Park, N. & E. River E. K. Co 147 Ahern v. County of Kings 37 Aikin v. Western Bailroad Co 155 Albany Northern Kailroad Co. v. Brownell 99 Albany Street, Matter of 82 Albrecht v. County of Queens S9, 37 Albro V. Rood 153 Allen V. Bufealo, R. & P. E. Co 27 Allen V. Town of Allen 30, 35, 38 Alpaugh T. Bennett ' 113 Amsbey v. Hinds 109, 111 Anderson, Matter of 23 Anderson v. Van Tassel 6, 7 Anderson v. Young 120 Application of E. E. E. Co., Matter of 8, 15 ' A. R. T. Co V. Hess et al 116, 117 Ashberry v. The Town of West Seneca 7 Axlebrood v. Rosen 147 B. Babcock v. Lamb & Doty 87 Babcock v. N. Y. C. & H. R. R. E. Co 133 Bailey v. Frost 115 Baker v. Braxaan 124 Baker, Matter of 96 Baker, Matter of (173 N. Y.) 84 Baldwin r. Jenkins 78 Barber v. Town of New Scotland 8, 29, 30 Barhite v. Home Telephone Co 116, 117 Barrett, Matter of 104, 106 Barrett v. Town of Walworth 29, 30 Barry v. Village of Port Jervis 36 Bartlett r. Crozier 14, 42 Basseline v. Pate SI PAG*. . 121 . 70 xiv Table of (Jases (Ijtei). Bayles v. Koe Beach v. Furman Beardslee et al. v. Dodge 100 Beck Street, Matter of the Opening of 77, 89, 95, 109 Beckwith et al. v. Whalen 9. HO, 133, 135 Benedict v. Calkins 85, 126 Benedict v. Goit 30 Bennett v. Whitney 32 Bentley v. Phelps 44 Berlin Iron Bridge Co. v. Wagner 9, 15, 80 Berridge v. Schults 124, 125, 126 Bidelmen v. State of New York 27 Bidwell V. Town of Murray 36 Birge v. B. I. B. Co. et al 20 Bishop V. Barton 8 Bissell V. N. Y. C. & H. E. E. E. Co 77 Black V. Staten Island Electric E. E. Co 148 Blanchard v. Hoboken Land & Imp. Co 156 Bliss V. Johnson et al 55 Board of Street Opening, Matter of 100, 102 Board of Supervisors v. Phipps 9, 13, 62, 65, 66 Boots V. Washburn et al 21, 24 Borst T. Town of Sharon 36 Borup, Matter of 23 Boston and Albany E. E. Co. v. President, etc., of Village of Green- bush 99 Bouton V. Nielson 69 Bowen v. Delaware, L. & W. E. E. Co 77 Boyce t. Town of Shawajigunk 30, 32, 33 Bradley v. Blair 122, 152 Brennan v. Eichardson 147 Bresky v. Third Avenue B. E. Co 147 Bridges v. WyckofE et al Ill Briggs V. Bowen 90, 94, 117 Briggs V. N. Y. C. & H. E. E. E. Co 133 Brook Avenue, Matter of 95 Brooklyn Heights, Matter of 86 Bryant v. Town of Eandolph 27, 29, 31, 33, 34 Buchholz V. N. Y., L. E. & W. E. E. Co 83, 90, 94 Buel, Matter of 80, 81, 83, 88, 100 Buffalo Plank Eoad v. Commissioners of Highways, etc 11 Buhr ens v. Dry Dock, etc., E. E. Co 147 Bullock V. Town of Durham 33, 34 Burdick, Matter of 81, 87, 93, 94, 106, 118, 124 Burdick v. Worrall 146 Burnham v. Butler et al 147 Table of Oases Cited. xv PAGE. Burns v. City of Yonkers , 29 Burns v. Town of Farmington 28, 36 Bush V. D., li. & W. E. R. Co . . 29, 31, 132, 142 Byrne r. The Knickerbocker Ice Co 148 C. Cadwell v. Arnheim 146 Carpenter, Matter of 95 Carpenter v. City of Cohoes 31 Carris v. The Commissioners, etc., of Waterloo 98 Callanan et al. v. Oilman 115, 120 Campbell v. Wood 146 Case V. Thompson 108, 113 Chamberlain v. Taylor 11, 49, 51, 67, 70, 72 Champlin v. Village of Penn Yan 28 Chapman v. Gates 87, 108, 117, 122, 127, 128 Chapman v. Swan 87 Chisholm v. State 35 Christy v. Newton 80, 81 City of Brooklyn, Matter of 77 City of Bufealo v. D., L. & W. R. E. Co 78, 110, 112, 117 City of Buffalo v. HofEeld 90, 110 City of Cohoes v. D. & H. C. Co 77, 111, 112 City of Niagara Falls v. N. Y. C. & H. E. E. E. Co 123 City of Eochester, Matter of 90 City of Eochester v. Bell Telephone Co 116, 117 City of Eochester v. Campbell 37 City of Oswego v. Oswego Canal Co 10, 78 City of Yonkers, Matter of 78 Clapp V. Town of Ellington 31, 136 Clapper v. Town of Waterford 29, 31, 32, 35, 55 Clifford V. Dam 120 Clute V. Eobison 24 Coatsworth v. Lehigh Valley E. Co 119 Coe, Matter of 84, 85, 89, 96 Colden v. Thurbur 80 Cole V. Trustees of Williamsburg 87 Cole V. Van Keuren 9, 10 Colman v. Shattuck 48, 70, 71 Commissioners of Highways of Cortlandville v. Peck 15, 123 Commissioners of Highways v. Bates 119 Commissioners of Highways of Bush wick v. Meserole 108 Commissioners, etc., of North Hempstead v. Judges, etc., of Queens, 10 CongrcTe t. Smith 120 CJonklin v. Phoenix Mills of Seneca Falls 120 xvi Table of Cases Cited. FAGS. Conkling t. New York, Ontario and Western Rail-way Co 83 Conkling v. Zerega W2 Consumers' Gas Co. v. Congress Spring Co 116 Cook V. Covil ISO Cook v. Harris et al 77, 78, 120 Cooper v. Bean 113, 121, 122 Corcoran v. Village of Peekskill 35 Corey t. Rice 136 Cortelyou v. "Van Brundt 90, 119 Cotanch v. Grover 7 Coutant V. Catliu 88, 96 Coxhead v. Johnson 37 Crabtree v. Otterson 147 Craig V. Supervisors of Orange 102 Crocker v. Knickerbocker Ice Co 146 Culver V. City of Yonkers ; Ill Curry v. City of Buffalo 36 D. Daly, Matter of S9 Davis V. Kallfelz 149 Davis V. The Mayor, etc., of New York 115 Day V. Crossman 35 Day V. Day 42, 107, 136 De Camp, Matter of 80, 93, 94, 95 Deiz V. Lamb 120 Department of Parks, In the Matter of 96 Devenbeck v. Lambert 112, 115 Deverell v. Bauer 7, 91 Devine v. Brooklyn Heights R. R. Co 37 De Witt et al. V. E. T. R. Co 90 De Witt V. Van Schoyk 10, 120 Dexter v. Broat 30 Dillon V. Nassau El. R. R. Co 148 Dolan V. N. Y. & H. R. R. Co 123 Doll T. Devery 151 Dominick v. Hill 87, 119, 121 Dorn V. Town of Oyster Bay 29, 30 Drake v. Rogers 90, 94, 113, 117, 124, 130 Driggs V. Philips 78, 81, 111, 117 Dudley v. Bolles 145 Dunican v. Union Railway Co 147, 148 Duntz V. Duntz 24 Duryea v. Smith et al 7 Dwight T. E. C. & N. R. R. Co 144 Dygert t. Schenck 115^ 133 Tabi-e of Cases (1ited. xvii E. PAGE. Earing v. Lanshigh 145 E. B. Co. V. Village of Haverstraw 81, 89 Eckerson v. Village of Haverstraw "i"? Edsall V. Howell 118, 144, 163 Edsall V, Vandemark 146 Edwards v. Ford 20, 31, 133, 135 Eels V. A. T. & T. Co 123 Egerer v. N. Y. C. & H. R. E. R. Co 90 Elile V. Town of Minden 31, 133 Electric Construction Co. v. HefEernan et al 116, 120 Eleventh Avenue, In the Matter of Opening of 102 Eleventh Street, Matter of 86 Ellison V. Allen et al 7, 144 Embler v. Town of Walkill 28, 37 Ensign et al. v. Barse et al 49, 51 Eppig V. City of New York 103 Eetes V. Kelsey 8 Evans v. Board of Street Commissioners 90, 144 Evans v. Keystone Gas Co 144 r. P. & S. E. E. & T. Co. V. Village of Payetteville 8, 28 Fanning, Matter of 83, 85, 100 Panning v. Osborn et al 90 Parman v. Tovm of Ellington 14, 30, 31, 42, 54 Pay V. The Town of lindley 31, 33, 36 Fearing et al. v. Irwin et al 90 Peeney, Matter of 79, 88, 95, 96, 98, 100 Field, Matter of 98 Pinegan v. Eckerson (33 App. Div., 233) 37, 91 Pinegan v. Eckerson (26 Misc., 574) 37, 91 Fisher v. City of Rochester 7, 91 Fisher v. Village of Cambridge 115 Flack V. Village of Green Island 78 Fleet V. Youngs 121 Flood V. Van Wormer 115, 121, 122, 133 Plynn v. New York Elevated R. R. Co 37 Plynn v. Taylor 114, 119, 130 Flynh et al. v. Hurd 14, 136 Foels V. Town of Tonawanda 35 Folts Street, Matter of 99 Forty-eighth Street, Matter of 95 Four Corner Road, Matter of 98 Fowler v, Lansing 130 A xviii Table of Cases Cited. rxGi. Fowler v. Mott 10. ^15 Fowler v. Westervelt 48, 68 Fox V. Union Turnpike Company 28, 30; 33 Fox Street, Matter of 77, 89, 110 Frasier v. Town of Tompkins 29 Freeholders, Matter of Certain 9, 137 Freeholders of Montezuma, Matter of 52, 112 Freeholders v. Towns Glen and Florida 110 Freeholders of Irondequoit, Matter of 133 Freeman t. Cornwall 70 Pries V. New York and Harlem K. R. Co 123 Fuller V. Redding 151 Furman v. Taylor 24 Furman Street, Matter of 86, 87 G. Gaedeke v. Staten Island Midland R. R. Co 62, 66 Galatin t. Gardner 112 Garlinghouse v. Jacobs et al 6, 33 Genet . . City of Brooklyn 89 Ghiglione v. Marsh 6, 20 Gidney v. Earl 119 Glasier v. Town of Hebron 30, 33 Glenside Woolen Mills, Matter of 95 Gorham v. East Chester Electric Co 144 Gould V. Glass 81 Gould et al. v. Booth et al 8 Grade Crossing Commissioners, Matter of 88 Graham v. Studwell 20 Grant v. City of Brooklyn 145 Grant v. Town of Enfield 31 GrifEen v. House 7 Grifath V. McCuUum 115, 119 H. Haberman v. Baker Ill Hall V. Town of Oyster Bay 30, 132 Halleran v. Bell Telephone Co 110, 119, 123 Hallock V. Woolsey 80 Halstead v. Village of Warsaw ; 143 Ham V. Silvernail ■ 87 Hamilton v. Village of Owego 118 Hampton v. Hamsher ; ; 49^ 51 Hand v. Klinker .• 115 Hand Street, Matter of ; . ; ; 74 112 Tabl^! of Cases Cited. xix PAGE. Harlow v. Humiston 10, 115 Harriman v. Howe 112 Harrington v. The People 87, 94, 98 Hartel v. Holland 146 Hartshorn v. Chaddock 144 Hathaway v. Jenks 117, 120 Hawxhurst v. Mayor 32 Haywood v. Wheeler 44 Heacock v. Sherman 133 Healy t. Vorndran 33 Heath v. Barman 91 Heath v. Barmore 91 HefEernan v. Barber's Son 146 Hegan v. Eighth Avenue Bailroad Co 147 Heib V. Town of Big Flats 35, 142 Heimburg v. Manhattan By. Co 123 Henneberger, Matter of 3, 82 Henry Street, New York, In the Matter of 95 Hergert v. Union Railway Co 147 Hewlett T. Brooklyn Heights B. B. Co 147, 148 Hickman v. Nassau Electric E. B. Co 148 Hicks V. Nassau Electric B. B. Co 148 Hines v. City of Lockport 32 Hitchman v. Baxter 151 Hoey V. Gilroy et al 116 Holmes v. Seely 118 Hood V. Smith et al 120 Horey v. Village of Haverstraw 110, 111, 117 Hosmer v. City of Gloversville 9 Houghtaling v. Shelley 120 Hover v. Barkhoof 6, 15 Howard v. Bobbins 115 Hubbell V. City of Yonkers 34 Huber v. Nassau Electric B. E. Co 147 HufEmire v. City of Brooklyn 132 Euggans v. Biley 9, 133 Hughes et al. v. Bingham et al 78, 81 Hume V. Mayor 28 Hunter, Matter of 78, 113 Hyatt V. Bates 94, 123 I. Isaacs y. Third Avenue B. B. Co 149 Ivory V. Tovm of Deerpark 6, 9, 10, 33, 34, 112 XX Table of Cases Cited. J. TAOE. Jackson v. Hathaway 90, 91, 119 James, Matter of 98 James v. Sammis et al 9, 121 Jewell T. City of Ithaca 36 John and Cherry Streets, In the Matter of 95 Johnson v. Loveless 80 Johnson v. Thompson-Houston Electric Co 116 Jones V. City of Utica 107 Jones V. Doherty 121 K. Keck V. Sanf ord 146 Kellogg: V. Thompson S Kelsey v. Burgess 9, 10 Kerr v. Hammer 121 Kerr v. Joslin 30 Kennedy v. The Mayor 36 Kennedy v. Third Avenue K. E. Co 147 Kierns v. Man. K. Co 123 King, Matter of 80 Kline v. Hibbard 120 Klug V. JefCers 77 Knight V. Lanier 151 Koester v. Decker 146 Kriete v. Man. K. Co 123 li. Ladd V. French 6 Lambert v. Hoke 130 Lament v. Haight 38 Lane v. Lamke 54 144 Lane v. Town of Hancock 29, 30, 34, 38 Lansing v. Smith 115 Lapham v. Eice 135 Law V. Kingsley 37, 55 Lawson v. Town of Woodstock 35 Lawton, Matter of 81 93 94 128 Lawton v. Commissioners of Cambridge 79 Lechner v. Village of Newark 151 Levin v. N. Y. El. E. E. Co 123 Lewis, Matter of jgg Lewis v. New York and Harlem E. E. Co 10 Lewis V. N. Y., L. E. & W. E. E. Co 112 Lewis Street, Matter of 86 Lexington Avenue, Matter of 91 Table of Cases Cited. xxi FACE. Liekens v. Staten Island Midland R. E. Co 31 Linehan v. Western El. Co 115 Little V. Denn 117, 122 Livingcston Street, Matter of 81 Livingrston v. Mayor of New York 86, 88 Lorickio v. Brooklyn Heights R. R. Co 148 Louden v. Eighth Avenue R. R. Co., etc ; 146 Lowerre v. Mayor of New York 89 Ludlow V. City of Oswego 77 Lynch v. Village of New Rochelle 36 Lyth & Sons v. Town of Evans 6, 21, 24 M. McCaffrey v. Smith 116 McCarthy v. Whalen 79, 99, 109 McCord V. Town of Ossining 28 McCruden v. Rochester Ry. Co 144 McDermott v. Conley 36 McFadden v. Kingsbury 42, 45 McGee v. The City of Brooklyn 102 McGuinness v. Town of Westchester 34 McGuire v. Spence 36 McMahon V. Town of Salem 6, 21, 32 McMannis v. Butler 77 McNulty V. City of New York 33 McVee v. City of Watertown Ill Mairs v. Manhattan Real Estate Association 120 Malloy v. The Town of Pelham 34 Mangam v. Village of Sing Sing 110, 111, 117 Marble v. Whitney 80, 81, 109 Mark v. Village of West Troy 78 Markey v. County of Queens 37 Marvin v. Pardee 121, 122 Masterson v. Short 120 Mather v. Crawford 9 Matter of Adams 86 Matter of Albany Street 82 Matter of Anderson 23 Matter of Application of R. El. R. Co 8, 15 Matter of Baker 96 Matter of Baker (173 N. Y.) 84 Matter of Barrett 104, 106 Matter of Beck Street, Opening of 77, 89, 95, 109 Matter of Board of Street Opening 100, 102 Matter of Borup 23 xxii Table of Cases Cited. PAGI. Matter of Brook Avenue ^5 Matter of Brooklyn Heights 86 Matter of Buel 80, 81, 83, 88, 100 Matter of Burdlck 81, 83, 87, 93, 94, 106, 118, 124 Matter of Carpenter 95 Matter of Certain Freeholders 9, 137 Matter of City of Brooklyn 78 Matter of City of Rochester 90 Matter of City of Yonkers 78 Matter of Coe 84, 85, 89, 96 Matter of Daly 89 Matter of De Camp 80, 93, 94, 95 Matter of Department of Parks, In the 96 Matter of Eleventh Avenue, Opening of 102 Matter of Eleventh Street 86 Matter of Fanning 83, 85, 100 Matter of Eeeney 79, 88, 95, 96, 98, 100 Matter of Field 98 Matter of Folts Street 99 Matter of Forty-eighth Street 95 Matter of Four Corner Boad 98 Matter of Fox Street 77, 89, 110 Matter of Freeholders of Irondequoit 133 Matter of Freeholders of Montezuma 52, 112 Matter of Furman Street, In the 86, 88 Matter of Glenside Woolen Mills 95 Matter of Grade Crossing Commissioners 88 Matter of Hand Street 74, 112 Matter of Henneberger 3, 82 Matter of Henry Street, New York, In the 95 Matter of Hunter 78, 113 Matter of James 98 Matter of John and Cherry Streets, In the 95 Matter of King 80 Matter of Lawton 81, 93, 94, 128 Matter of Levyia 102 Matter of Leviris Street 86 Matter of Lexington Avenue 91 Matter of Livingston Street 81 Matter of Mayor 89, 100 Matter of Miller lOi Matter of Mitchell 84 Matter of Morris Street, Opening of 102 Matter of Ninth Avenue and Fifteenth Street 88 Matter of North Fifth Street 86 Matter of Oakley Avenue gg Table of Cases Cited. xxiii rAGZ. Matter of Ogden Street 84 Matter of One Hundred and Sixteenth Street 86, 88 Matter of One Hundred and Seventy-third Street 86 Matter of New Reservoir, In the 84, 93, 102 Matter of Pugh 81, 84, 85, 93, 94, 130 Matter of Biverside Avenue, Opening of 88 Matter of Bogers Avenue, Opening of 88, 93 Matter of Seventeenth Street 91, 119 Matter of Shapter v. Carroll 60 Matter of Shawanguuk Bridge 73 Matter of Sly T 93 Matter of Syracuse and South Bay R. Co 15 Matter of Tappan 98 Matter of Taylor & Allen 83, 94, 99, 104, 106 Matter of The Mayor 89, 100 Matter of Thirty-ninth Street, New York 86, 87 Matter of Thirty-second Street 86 Matter of Thompson 95 Matter of Torge v. Village of Salamanca 23 Matter of Town of East Hampton 90 Matter of Town of Whitestown 93, 94 Matter of Trask 84 Matter of Trustees of White Plains 83, 92, 94 Matter of Tuthill 125 Matter of Twenty-ninth Street, New York 86 Matter of Union Ferry Co 156 Matter of William and Anthony Streets, In the 89 Matthews v. De GrofE 37 Maxim v. Town of Champion 33, 34 Mayor of New York v. Law et al 77 Mayor, etc., of N. Y. v. New Jersey Steamboat Nav. Co ISS Mayor, etc., of New York v. Starin 154, 155 Milburn v. Fowler 27, 91, 120 Miller, Matter of 101 Miller v. Brown 80, 87, 108 Miller v. Garlock Ill, 112 Missano v. Mayor .". 36 Mitchell, Matter of 84 Mogg V. West 10, 116 Mohawk & Hudson B. B. Co. v. Artcher 85, 134, 126, 128 Monk V. Town of New Utrecht 6, 29, 32, 33 Montezuma, Matter of Freeholders of 53, 112 Mooney v. Trow Directory, Printing and Bookbinding Co 146 Moore v. Village of Fairport 117, 119 Moran v. McClearns 7 Morell V. Peck et al 36 xxiv Table of Cases Cited. PAGE. Morris Street, Matter of Opening of 102 Morse t. City of Tro3- 78 Mortimer v. Xe^v York Elevated R. R. Co 91 Mott V. Clayton 90 Mott V. Commissioners, etc., of Rusli 120 Mott V. Mayor of Xew Yorlc 91 Mnhllter v. Man. R. Co 123 Mullen V. Village of Glens Falls 18, 28, 143 Myers v. Martin et al 15 N. Nason v. West 143 Newell V. Town of Stony Point 6, 29, 30 Newkirk v. Sabler 118 Newman v. Ernst 146 New Reservoir, In the Matter of 84, 93, 102 Niagara Palls Suspension Bridge Co. v. Bachman 7, 144 NicoU \. Sands et al 26 Ninth Avenue and Fifteenth Street, Matter of 88 Ninth Ave. E. R. Co. v. N. Y. Elevated R. R. Co 120 North Fifth Street, Matter of 86 Northridge v. Atlantic Ave. R. R. Co 147 Norlhi'op V. Burrows 117 North Third Avenue, In re Extension of 87 New York, L. E. & W. R. R. Co. v. Supervisors of Delaware County. . 51 O. Oakley Avenue, Matter of 98 Ogden Street, Matter of 84 Olmstead v. Town of Pound Ridge 36 One Hundred and Seventy-third Street, Matter of 86 One Hundred and Sixteenth Street, Matter of 86, 88 P. Paine v. City of Rochester 143 Palmer v. Palmer 77, 112 Palmer v. Larchmont Electric Co 54, 55, 116 Palmer v. Plank Road Co 123 Parish v. Baird 27 Parker v. Van Houten 80 Patchen v. Town of Walton 6, 29, 32, 33, 35, 57 Patterson v. City of Binghamton 103 Patton V. Miller 83^ 92 Peck V. Schenectady Ry. Co 91 Peckham v. Henderson II5 Table of Cases Cited. xxv PAGE. Pelkey v. Town of Saranac 30, 32, 33, 34 Pell V. Pell 90 People ex rel. Martin v. Albright 95, 99 People ex rel. Smith v. Allen 83, 85 People ex rel. Myers t. Barnes et al 12, 22, 24, 39 People ex rel. Root t. Board of Supervisors 2, 132 People ex rel. Loomls v. Board of Town Auditors 28, 39 People ex rel. Thompson v. Brookfield 116, 118, 121 People ex rel. Bowles v. Barrel 6, 15, 21 People ex rel. Becker v. Burton 85 People ex rel. Cecil v. Carman 80, 88 People ex rel. v. Champion 108 People ex rel. v. City of Brooklyn 86 People ex rel. Peterson v. Clark 21, 40 People V. Collins 80 People ex rel. Miller v. Commissioners et al 98 People ex rel. Climax Co. v. Commissioners 19 People V. The Commissioners 81 People V. Commissioners, etc., of Greenbush 126 People ex rel. Ashley v. Commissioners of Highways 108 People ex rel. Cook et al. v. Commissioners of Highways 98 People V. Commissioners of Highways of the Town of Palatine .... Ill People V. Commissioners of Highways of Bed Hook 79 People ex rel. Clark v. Commissioners of Highways of Town of Beading 89, 108 People V. Commissioners of Salem 79 People V. Connor 84 People ex rel. D., L. & W. R. E. Co. v. County Court 109 People ex rel. E. R. Co. v. County Court 94, 104 People V. Cunningham 117 People T. Denslow 7 People ex rel. Waters v. Diver. 79 People ex rel. Ithaca v. D., L. & W. E. R. Co 99 People ex rel. Beardslee v. Dolge 99 People ex rel. Wait v. Eggleston et al 87, 94 People ex rel. Smith v. Ferris 85 People V. Finger 7 People ex rel. Keteltas v. Fitch 96 People V. Flower et al 15 People ex rel. Penfleld v. George 8, 13 People ex rel. Heiser v. Gillon 85 People V. Goodwin 95, 99 People ex rel. Miller v. Griswold 89 People ex rel. Hubbard et al. v. Harris et al 95, 98 People ex rel. Cook v. Hildreth 80 xxvi Table of Cases Cited. PAGE. People V. Hinds et al ^'^ People ex rel. Stanton v. Horton 93, 94, 98 People ex rel. Butler v. Hunting 121 People ex rel. Wilkinson v. Ireland 93 People ex rel. Bowen et al. v. Jones 82 People V. Judges of Cortland County 9 People V. Judges of Dutchess 98 People T. The Judges of Herkimer Common Pleas 85 People V. The Judges of Suffolk 89 People ex rel. Knapp v. Keck 84, 106 People V. Kellogg ''"'' People V. Kerr 91 People V. Kingman 93, 99 People ex rel. Williams v. Kingman 78 People V. Lambier 115 People V. Lawrence 88 People V. Livingston 77, 112 People ex rel. Wakeley v. Mclntyre 6, 30 People ex rel. Lasher v. McNeil 81 People V. Macy 116 People T. Mago 154 People ex rel. DeGroat v. Marlett 109 People ex rel. Hewlett v. Mayor 84 People ex rel. Simon v. Mayor 116 People V. Metropolitan Telephone, etc., Co 117 People v. Meyer 151 People V. Moore 98, 130 People ex rel. Clinch et al. v. Moore et al 93 People ex rel. Dexter v. Mosier 85 People ex rel. Mann v. Mott 89 People ex rel. Titsworth v. Nash 104 People V. N. y. C. & H. K. R. E. Co 8 People ex rel. City of Yonkers v. N. Y. C. & H. K. R. K. Co 110 People ex rel. Bristol et al. v. Nichols et al 81, 89 People ex rel. Bacon v. N. C. Ry. Co 123 People ex rel. Cunningham v. Osborn Ill, 112 People v. Pierce 51 People ex rel. Lovett v. Randall 15, 179 People V. Robertson 81 People v. Robinson 128 People ex rel. Waterman v. Schellenger et al 98 People ex rel. Eastman v. Scott 77 People ex rel. Mershon v. Shaw 81, 89 People ex rel. Bailey v. Sherman 89 People V. Sly 11 Table of Cases Cited. xxvii FACE. People ex rel. Allen v. Smith 108 People ex rel. Slater v. Smith 6, 7, 20, 31, 22, 33, 39 People ex rel. Willis t. Smith 85 People ex rel. Van Norder v. Sewer Com 121 People ex rel. Scraflord v. Stedman 85, 95 People V. Sturtevant 115 People ex rel. Bevins v. Supervisors 15, 24, 81, 101, 109, 142 People ex rel. Dady v. Supervisors 87, 94 People ex rel. Everett v. Supervisors 15 People ex rel. Keane v. Supervisors 91, 133 People ex rel. Morrill v. Supervisors 3 People V. Supervisors of Alleghany County 85 People ex rel. Newton & Kent v. Supervisors of the County of Oneida 102 People ex rel. Aspinwall v. Supervisors of Richmond 81, 88 People V. Supervisors of St. Lawrence 102 People v. Taylor 124, 136 People ex rel. Banner v. Temple 99 People ex rel. Hanford v. Thayer 93, 94, 95 People ex reL.Hann v. Town Auditors 24 People ex rel. Van Keuren v. Town Auditors 14, 15, 42 People ex rel. Groton Bridge Co. v. Town Board 21, 22 People ex rel. Eckerson v. Trustees, etc 81 People ex rel. Eckerson v. Trustees 125 People V. Underbill et al 78, 112 People V. Vail 108 People ex rel. Van Rensselaer v. Van Alstyne 99 People ex rel. Dinsmore v. Vandewater 3 People ex rel. Eckerson v. Villag-e of Haverstraw 79 People ex rel. Ludlum v. Wallace 85 People ex rel. Brockway v. Whitney 81 People ex rel. Johnson v. Whitney's Point 88, 108 Phelps V. Wait 146 Phillips V. Schumacher 87 Pike V. Bosworth 145, 146 Port Jervis, Village of, v. First National Bank 37 Porter v. Village of Attica 78 Post V. W. S. R. E. Co 27 Potter V. Benniss 70 Power V. Villag-e of Athens 154, 155, 157 Pratt V. The People 79 President, etc., D. & H. C. Co. v. Village of Whitehall 99 Prospect Park & C. I. E. R. Co. v. Williamson et al 95, 99 Pugh, Matter of 81, 84, 85, 93, 94, 130 Purdy V. Moore 9 xxviii Table or Cases Cited. Q, PAGE. Quinn v. O'Keefe 146 Quinn t. Pietro 145 Quiun V. Town of Sempronius 28, 32, 33, 36 B. Rauenstein v. N. Y., L. & W. R. E. Co 88 Eaynor t. Syracuse University 78, 110 Rector v. Pierce 32, 35 Rector v. Syracuse Rapid Transit K. Co 143 Rehf eldt v. City of Brooklyn 88 Eeid V. The Town of Ripley 33 Reilly t. B. H. R. R. Co 147 Reilly v. Sicilian Asphalt Paving Co 37 Bernhardt et al. v. The City of Buffalo 87 Reining v. City of Buffalo 36 Riker v. Mayor, etc., of New York 94, 102 Riley v. Brodie 9, 111, 112 Riley v. Town of Eastchester 34, 35 Riley v. Town of Greenburg 31 Rinehart v. Young 48, 52, 70 Riverside Avenue, In the Matter of Opening of 88 Robert et al. v. Saddler et al 6, 7 Robinson v. Town of Fowler 8, 18 Roblee v. Town of Indian Lake 33 Rochester & L. 0. W. Co. v. City of Rochester 2, 26 Roe V. Town of Elmendorf 31 Rogers v. Rogers 113 Rogers Avenue, Matter of Opening of 88, 93 Rohling V. Eich 37 Rooks V. Houston, West Street, etc., E. B. Co 147, 150, 151 Rozell et al. v. Andrews 74, 123 Rudolph V. Ackerman 123 S. Sage V. Barnes 121 Sage V. City of Brooklyn 103 Sanders, Ex parte 109 Satterley v. Winne 124, 128 Sauer v. City of N. Y 123 Saunders v. Tovmsend 122 Savage v. Gerstner 145, i46, 147 Schaffer v. Baker Transfer Co 146 Schild T. C, P. N. & E. R. R. Co 27 Schimpf V. Sliter I45 145 Sesselmann v. M. S. Ry. Co 148 Table of Cases Cited. xxix PAGE. Seventeenth Street, Matter of 91, 119 Sewell V. City of Cohoes 74 Shapter v. Carroll, Matter of 60 Shaw V. Manhattan Avenue E. E. Co 123 Shav? V. N. Y. El. Ey. Co 123 Shaw V. Town of Potsdam 30, 33, 35, 38 Shawang-unk Bridge, Matter of 78 Sheehy v. City of New York 36 Sheehy v. Utah Stage Co 146 Sheldon v. Western Union Telegraph Co 37 Shepherd v. Metropolitan Elevated Eailroad Co 123 Sherman v. Town of Hamburg 24 Simmonson v. Stellenmerf 146 Sly, Matter of 93 Smith V. City of BufCalo 77 Smith V. Dygert 145 Smith V. Helmer 14 Smith V. Ferris 78, 85, 99, 126 Snowden v. Town of Somerset 6, 8, 29, 30, 34, 36 Snyder v. Plass 9, 79, 99, 113 Snyder v. Trumpbour 85, 98, 99, 113 Spencer v. Town of Sardinia 34, 36, 143 Spicer v. Seade 120 Spier et al. v. Town of New Utrecht 112 Splittorf V. State of New York 35 St. John V. Mayor, etc., New York 116 Stacy V. Town of Phelps 34 Staring v. Western Union Telegraph Co 37 Stokes V. Manhattan Eailroad Co 123 Stone V. Board of Supervisors 132 Stone V. Town of Poland 35 Storm V. Man. E;1. E. Co 123 Strickland v. Woolworth 117 Strumwald v. Schrieber 37 Supervisors, Board of, v. Phipps 9, 13, 62, 63, 64 Supervisors of Brie v. City of Buffalo 87 Supervisors v. Sea View E. Co 90 Surdam v. Puller 136 Sutphen v. Tovm of North Hempstead 30, 33, 34, 35 Syracuse and South Bay E. Co., Matter of 15 T. Talmage v. Huntting 9, 79 Tappan, Matter of 98 Taylor v. Porter 125, 130 XXX " Table of Cases Cited. FACE. Taylor v. Town of Constable 42 Taylor and Allen, Matter of 83, 94, 99, 104, 106 Theall v. City of Yonkers 32 The Mayor, Matter of 89, 100 Thirty-ninth Street, New York, Matter of 86, 87 Thirty-second Street, In the Matter of 86 Thompson v. Allen 8, 115 Thompson, Matter of 95 Tifft et al. v. Alley 107 Tinker y. New York, Ontario and Western Kailroad Co aS, 37, 114 T. I. P. Ass'n V. Tucker 77 Todd T. Todd 80 Tompkins v. Hodgson 118 Torge, Matter of, v. Village of Salamanca 23 Town of Candor v. Town of Tioga 133, 140 Town of Clay v. Hart 26, 37, 91, 133 Town of Conewango v. Shaw 27 Town of Corning v. Head 116, 117, 121 Town of East Chester v. N. Y. W. & C. Trac. Co 27 Town of B. F. v. Town of W 133 Town of East Hampton, Matter of 90 Town of Fort Covington v. U. S. & C. E. E. Co 26, 27 Town of Galen v. Clyde & Eose Flank Eoad Co 90 Town of Newkirk t. Newbury et al 133 Town of Palatine v. N. Y. C. & H. E. E. R. Co 27, 121, 123 Town of Salamanca v. Cattaraugus County 134 Town of Saranac v. Groton Bridge Co 20, 21 Town of Sardinia v. Butler 121, 122 TowTi of Smithtowu v. Ely 119 Town of West Union v. Eichey 115, 121, 122 Town of Wheatfield v. Shasley 118, 119, 123, 144, 162 Town of Whitestown, Matter of 93, 94 Town of Windsor v. D. & H. C. Co 27 Town of Wirt v. Supervisors 134 Townsend v. Bishop 109 Trask, Matter of 84 Trustees of Jordan v. Otis 115 Trustees of Presb. Society in Waterloo v. The Auburn & Eochester E. E. Co 90 Trustees of the Village of Angelica v. Morse 51 Trustees of White Plains, Matter of 82, 92, 94 Tucker v. Eankin 80 Turner t. Williams 88, 96 Tuthill, Matter of 125 Twenty-ninth Street, Matter of 86 Table of Cases Cited. xxxi XJ. PACK. Union Ferry Co., Matter of 155 V. Vail T. Long Island R. R. Co 78 Van Alstyne v. Freday. 15 Van Bergen v. Bradley 79, 141 Van Brundt v. Ahearn '. 120 Vandemark v. Porter 78 Vanderveck v. City of Rochester 110 Vandewater v. Town of Wappinger as, 142 Van Gaasbeck v. Town of Saugerties 34 Van Rensselaer v. Van Alstyne 99 Van Sicklen v. Jamaica Electric Light Co 116, 144 Van Wyck v. Lent 117 Victory v. Blood 15 Village of Fulton v. Tucker 55 Village of Hempstead v. Ball Electric Co 115, 116, 121 Village of Lancaster t. Richardson 144 Village of Olean t. Steyner et al., In re 86, 87 Village of Port Jcrris ▼. First National Bank 37 W. Wakeman v. Wilbur 82, 110, 120 Walker v. Caywood et al , 8, 79, 121 Walker v. Moseley 69 Waller v. Town of Hebron 29, 30, 38 Ward V. Atlantic and Pacific Telegraph Co -37 Warren v. Clement 32, 33 Weed V. Village of Ballston Spa 36, 54 Wells V. Town of Salina 21 Welsh V. Wilson 115 Wheatfield v. Tonawanda St. R. R. Co 133 Whitaker v. Eighth Ave. R. R. Co 148, 149 Whitbeck v. Cook 91 White V. Wiley 118 Whitlock V. Town of Brighton 6, 21, 32, 33 Whitney v. Town of Ticonderoga 18, 28, 29, 30 Wiggins V. Tallmadge 9 Wiley V. Smith 27 William and Anthony Streets, In the Matter of 88 Williams v. Hynes 120 Williams v. Kenney ■ 7. 91 Williams v. SafEord 118 Wiswall V. Wandell 155 Wood V. Third Ave. R. R. Co 37 xxxii Table of Cases Cited. PAGE. Wood V. Town of Gilboa 34 Woodruff V. Paddock 110, 117 Woolsey v. Tompkins 80 Wrig:lit T. Fleischmann 145 Wright V. Saunders 120 Wyman v. Mayor of New York 86 Y. Young- V. Town of Macomb 32, 33 Z. Zingrebe v. Union Railway Co 148 THE HIGHWAY LAW. AS AMENDED TO THE END OF THE SESSION OF 1904. LAWS OF 1890, CHAPTER 568. AN ACT in Relation to Highways, Constituftng Chapter Nineteen of the General Laws. [Became a law June 7, 1890, taking effect March. 1, 1891.] CHAPTER NIISTETEEN OF THE GENERAL LAWS. The Highway Law. Article I. Highway officers, their general po\rers and duties, (§§ 1-26.) II. Assessment for highway labor. (§§ 30-59a.) III. The duties of overseers of highways, and the performance of highway labor. (§§ 60-74.) IV. Laying out, altering and discontinuing highways and lay- ing out private roads. (§§ 80-123.) V. Bridges. (§§ 130-145.) VI. Miscellaneous provisions. (§§ 150-169b.) VII. The regulation of ferries. (§§ 170-174.) VIII.*Ilepealing and other clauses. (§§ 180-183.) ARTICLE I. Highway Officees, Thbie Geneeal Powees and Duties. Section 1. Short title. 2. Treasurer of highway commissioners. 3. Powers of one commissioner. . 4. General powers of commissioners. 5. Mile-stones and guide-boards. 6. Eoad machines and implements. •Article VIII, renumbered Article IX and a new Article VIII, "County Supervision of High- roir. " jnaoi'terl T,. 1002 I>h. 39B. ways," inserted L. 1902, ch. 396. 2 The Highway Law. Section 7. Stone-crushers and materials. 8. Custody of stone-crusiiers. 9. Additional tax. 10. Extraordinary repairs of highways or bridges. 11. Auditing expense thereof. 11a. Damages for change of grade. 12. Accounts, how made out. 13. Unsafe toll-bridge. 14. Water pipes in highways. 15. Actions for injuries to highways. 16. Liability of towns for defective highways. 17. Action by town against commissioners. 18. Audit of damages without action. 19. Reports of commissioners. 20. General duties of overseers. 21. Opening obstructed highwaj'S. 22. Penalties against overseers. 23. Penalties, how collected. 24. Compensation of overseers. 25. Division of town into highway commissioner districts. 26. Duties of commissioner in each district. Section 1. Short title. — This chapter shall be known as the highway law. Provision was made by L. 1893, ch. 655, and L. 1904, ch. 536, for a com- pilation of the Highway Law to be issued in manuals for distribution among the commissioners of high^vajs and overseers of highways. It was also provided that the manual should contain plans for road building. The highway law is a consolidation and revision of the prior highway legislation and contains some new provisions engrafted upon the ante- cedent law. People ex rel. Boot v. Bd. Supervisors, 146 N. Y., 107. The control of highways is in the sovereign power which is with the people, as represented in their legislature, and this power may be deleg-ated to municipalities, which are held to an implied contract to fulfill their duties in relation thereto, which contract inures to the benefit of all interested parties. Rochester & L. 0. AV. Co. v. City of Kochester, 176 X. Y., 36. Highways in Indian reservations are not within this law. Bishop v. Barton, 2 Hun, 436; aJfd., 64 N. Y., 637; and see Indian Law (L. 1892, ch. 679), §§ 12, 73, 80, 94. The Constitution of the State of New York provides in art. 3, § 18, " The Legislature shall not pass a private or local bill in amy of the following cases: The Highway Law. 3 " Laying out, openings, altering, working or discontinuing roads, high- ways or alleys, or for draining swamps or other low lands." But it may authorize boards of supervisors to do so. People ex rel. Morrill v. Supervisors, 112 N. Y., 585. As to what is a private or local bill, see Matter of Henneberger, 155 N. Y., 420. Powers of boards of supervisors over highways and bridges, §§ 54-59a, 180-189, post; County Law, §§ 60-80, pages 169-178, post; L. 1898, ch. 115, pages 189-196, post. Highways in villages and village trustees as commissioners of high- ways, Village Law (L. 1897, ch. 414), §§ 140-169; L. 1883, ch. 113. Turnpike, plank-road and bridge corporations. Trans. Corp. L. (L. 1890, ch. 566), §§ 120-151. Rights and duties of railroad companies and street railroad com- panies, as to highways, and as to each other in highways. Railroad Law (L. 1890, ch. 565); L. 1893, ch. 239; L. 1835, ch. 300. Alteration of roads, construction of bridges, etc., under Canal Law (L. 1894, ch. 338), §§ 110-118. Special provisions for improvement of streets and highways in towns lying within counties containing upwards of 600,000 inhabitants, L. 1893, ch. 583. Rivers and streams as highways. Navigation Law (L. 1897, ch. 593), §§ 70-76b. Special provisions for lamp ana lighting districts, L. 1893, ch. 355, as amd. by L. 1893, ch. 79 and L. 1896, ch. 309. Act to preserve forever the New York and Albany post road as a State public highway, L. 1896, ch. 423; People ex rel. Dinsmore v. Van- dewater, 176 N. Y., 500. Act to authorize the acquisition of turnpikes and plank roads by cer- tain counties and villages, L. 1897, ch. 596; L. 1899, ch. 594. Act in relation to the appointment of sidepath commissioners and the construction of sidepaths, L. 1899, ch. 153, as amd., L. 1900, ch. 640; L. 1903, ch. 305. Also L. 1903, ch. 465. Act to provide for the improvement of public highways, L. 1898, ch. 115; L. 1901, ch. 240; pages 189-200, § 2. Treasurer of highway commissioners. — When there is more than one commissioner of highways in any town, they shall designate one of their number to be treasurer. If they fail so to do, the commissioner longest in office shall be the treasurer; and all money collected for highway pui-poses, or belonging to the highway fund of the town, shall be paid to him. Before receiving such money, he shall execute to the town an undertaking, to be 4 The Highway Law. approved by the supervisor, to tlie effect ttat lie -will faithfully account and pay over to any officer or person entitled thereto, any money that may come into his hands as such treasurer. Eevised from L. 1873, ch. 395, § 5, in -which the oiEcial thus chosen was called the president. The undertaking required of the treasurer by this section is in addi- tion to the one required of all commissioners by § 63 of the Town Law, page 182, post. Commutation money of corporations to be paid to commissioners of highways, § 62, post. Arrearages for unperformed labor to be paid to commissioners of highways when collected, § 68, post. Collector of taxes pays over to commissioners of highways money raised to repair highways and bridges of towns. Tax Law (L. 1896, ch. 908), § 56. Money raised from licensing hacks, conveyances and amusements in towns having a population of over three thousand outside of cities or Tillages to be paid to commissioners of highways, L. 1890, ch. 332. Form of designation of treasurer No. 1, post. For form of undertaking required by this section, see Nos. 2-5, post. § 3. Powers of one commissioner. — When any town has but one commissioner of highways, the term, commissioners of high- ways, when used in this chapter, shall mean such one commissioner. New, but see L. 1873, ch. 395, § 6, and L. 1881, ch. 644. To same eifect see Statutory Construction Law (L. 1892, ch. 677), §S 8, 18. It is provided in § 15 of the Town Law, page 180, post, that where there is but one commissioner of highways elected, he shall have the same powers as three commissioners would have. For general powers of commissioners of highways, see § 4 and notes, post. For provisions as to division of a town into commissioner districts, where there are three commissioners of highways, see §§ 25, 26, post. i 4. General powers of commissioners. — The commissioners of highways in the several towns, shall have the care and supe]^ intendence of the highways and iDridges therein, except as other- wise specially provided in relation to incorporated villages, cities and other localities; and they shall 1. Cause such highways and bridges to be kept in repair, and give the necessary directions therefor, and shall inspect the high- ways and bridges in each highway district between the first and The Highway Law. 5 fifteentli day of September in eacli year, or at such other time as the board of supervisors by resolution may prescribe. If it appears to him upon such inspection that the labor assessed in any highway district has not been entirely performed therein, he shall transmit a statement to the supervisor of his town con- taining the number of days' labor which in his opinion have not been performed in such district, and a list of all persons and corporations owning property therein, and the number of days of labor still to be performed by such persons and corpora- tions. A notice of the transmission of such statement and of the day and place where the persons assessed for highway labor in such district may be heard before such supervisor, shall be posted in at least three conspicuous places in the road district affected by such statement. On the day and at the place specified in such notice, the supervisor shall hear all persons interested in the performance of labor on the highways in such district. After such hearing, the supervisor shall correct such list in accordance with the testimony and facts as they appear to him and shall make a return thereof to the board of super- visors in the same manner as unpaid taxes and unperformed labor are returned by the town board to the board of super- visors. The board of supervisors at its annual meeting in each year, shall cause the amount of the arrearages for highway labor contained in such lists, estimating each day's labor at one dollar and fifty cents a day, to be collected from the property of the person or corporation specified in such list, in the same manner as arrearages for unperformed labor. Eevised from 1 E. S., ch. 16, tit. 1, art. 1, § 1, subds. 1, 4; amd. L. 1901, ch. 437; L. 1902, ch. 75, sec. 1, in effect March 4, 1902. Duty of commissioners to personally superintend repairs, see subd. 9 of this section. For provisions as to liability for injuries to highways, see §§ 15, 153, post. For provisions as to liability for defects, see §§ 16-18, post. For overseer's duty to keep highway in order, see § 20, post. Maintaining highways on town lines, § 97, post. Improvement of highways extending beyond town line, § 95, et seq., post. Provisions as to obstruction of and encroachment upon highways, §§ 21, 102-105, post. The commissioner of highways has no jurisdiction over " county roads," § 58, post; see, also, art. 8, post. For additional provisions for repair of bridges, see §§ 130-145 and notes, post. Forms of statement and notice of transmission, Nos. 10-11, post. 6 The Hiohway Law. Raising additional funds for repairs of highways, § 9, post, and County Law, §§ 69, 70, pages 173, 174, post. And see People ex rel. Wakeley v. Mclntyre, 154 N. Y., 628, and Ghiglione v. Marsh, 23 App. Div., 61. Duty of railroads as to grade crossings and overhead and subway crossings. Eailroad Law (L. 1896, ch. 565), §§ 11, 60-67; L. 1835, ch. 300. A town has never had any right to lay out, alter, discontinue, improve or repair a highway. Those are duties of the commissioner of high- ways, and the town has no authority over him in their performance, and he is not its agent in so doing. Snowden v. Town of Somerset, 53 App. Div., 84; rev'd, 171 N. T., 99; X,yth & Sons v. Town of Evans, 33 Misc., 231; People ex rel. Bowles v. Burrell, 14 Misc., 317. Where commissioners of highways have not sufficient funds in their hands to provide all needed repairs, it is within their discretion to apply the funds on hand in making such repairs as are most urgently needed, and they are not, nor is the town, liable for their error in judg- ment in so doing, if they act reasonably and in good faith. Monk v. Town of New Utrecht, 104 N. Y., 552; Patchen v. Town of Walton, 17 App. Div., 158; Garlinghouse v. Jacobs et al., 39 N. Y., 297. And they are presumed to have exercised their discretion reasonably and in good faith in such a case. People ex rel. Slater v. Smith, 83 Hun, 433; Garlinghouse v. Jacobs et al., supra. If they do not exercise this discretion reasonably, and thereby omit essential repairs, the town will be held liable for resulting injuries. Ivory V. Town of Deerpark, 116 N. Y., 476. But if the commissioners of highways have power to borrow money for the purpose of making repairs, their lack of funds is no excuse. Hover v. Barkhoof, 44 N. Y., 113; Ivory v. Town of Deerpark, supra; Whitlock V. Town of Brighton, 2 App. Div., 21; afEd., 154 N. Y., 781; McMahon v. Town of Salem, 25 App. Div., 1; and see many additional cases on this subject in notes to § 10, post. Commissioners of highways may repair any part of the highway; not merely the traveled portion, but to its extreme vridth. Anderson v. Van Tassel, 53 N. Y., 631, and see Newell v. Town of Stony Point, 59 App. Div., 237. Where it is necessary to cut down the bed of the highway, the fee of which is not in the public, in order to bring it to a desired grade, the commissioners of highways may use the earth and stone thus taken out to repair any part of the highway upon which they may see fit to put them, but unless it is necessary to remove the earth and stone for that purpose, they may not use them for the purpose of repairing any part of the highway, except that part which is opposite the lands of the one who owned the fee of the highway at the point where the materials were removed. Robert et al. v. Sadler et al., 104 N. Y., 229; Ladd V. French, 6 N. Y. Supp., 56; 24 N. Y. S. R., 952. The Highway Law. 7 The same rule has been applied to removals from village streets by street commissioners. Cotancb v. Grover, 57 Hun, 273. As to the removal of earth from streets where the ovyner of the land lays it out in lots and dedicates the streets to the public, and they are adopted by the authorities, see The Niagara Falls Suspension Bridge Co. v. Bachman, 4 Lans., 533 (judgment reversed on another ground, 66 N. Y., 261) ; where it is held that such removals are per- missible when the material removed is applied to other streets of the same plot. This case is criticised in Kobert et al. v. Sadler et al., 104 N. Y., 229, as being a case of removal necessary to bring the surface down to an established grade. Where the soil is required to repair the road in front of an abutter's premises, it may be taken from any portion of the road, including the untraveled roadside, regardless of any grading which the abutter maj' have done, and though such grading will be disturbed by the removal of the soil. Anderson v. Van Tassel, 53 N. Y., 631. Where an abutter owns the fee of a highway, a municipality may not deduct the value of earth and stones taken from the highway by the contractor from the contract price of the improvement. Fisher V. City of Rochester, 6 Lans., 225. Such stone belongs to the abutter. Deverell v. Bauer, 41 App. Div., 53. Trees in a highway may be removed to be used in fitting it for public use, but from analogy it would follow that they must be used as soil would be in like circumstances. Ellison v. Allen et al., 30 N. Y. Supp., 441; 62 N. Y. S. K., 274; The Niagara Falls Suspension Bridge Co. v. Bachman, supra. A commissioner of highways is not protected by his ofBce in entering upon private property and taking soil to repair highways. Duryea v. Smith et al., 42 N. Y. S. E., 565. An abutter, who owns the fee of a highway, may remove soil from the highway, if he does not injure the highway, nor affect the freedom of egress or ingress of adjoining owners. Williams v. Kcnney, 14 Barb., 629; see notes to § 15, post. • Authority to repair bridges may imply authority to rebuild, even by replacing a partially fallen w^ooden bridge with an iron bridge. People ex rel. Slater v. Smith, S3 Hun, 432. But it would seem that commissioners of highways may not change the location of a bridge under the authority to repair or rebuild. The People v. Finger, 24 Barb., 341; and see The People v. Denslow, 1 Caines, 177; GrifEen v. House, 18 Johns., 397. Repairs may not be so made as to materially increase or change the natural flow of surface water or streams to the detriment of an abutter. Moran v. McClearns, 63 Barb., 185; Ashberry v. The 'iown of West Seneca, 33 N. Y. S. E., 431; 11 N. Y. Supp., 306. 8 The Highway Law. And the abutter may turn back the increased flow. Thompson v. Allen, 7 Lans., 459. And a stream which has been diverted into a highway may be returned to its natural course on the abutter's land. Kellogg v. Thompson, 66 N. Y., 88. Commissioners of highways are not liable for failure to provide sluices or culverts to carry off .surface water. Gould et al. v. Booth et al., 66 N. Y., 63; and see Barber v. Town of New Scotland, 88 Hun, 522, and Acker v. Town of New Castle, 48 Hun, 312. A town is not liable for injuries resulting from the negligence of a commissioner of highvi'ays, or his employes, in the repair of a highway, not resulting in a defective highway, since the town itself is not required to make any such repairs, and the commissioners and over- seers are not its agents in so doing. So held in a suit for injuries caused by blasting in the course of making repairs to a highway. Rob- inson V. Town of Fowler, 80 Hun, 101; and see Barber v. Town of New Scotland, 88 Hun, 522; Snowden v. Town of Somerset, 52 App. Div., 84; rev'd, 171 N. Y., 99. A railroad may be indicted for failure to make the repairs to high- ways which it is required to make. People v. N. Y. C. & H. R. R. R. Co., 74 N. Y., 302. Commissioners of highways do not lose all control over a highway from the fact that a plank-road company takes a portion of it for its road, but they retain their jurisdiction in the particulars in which its exercise would not conflict with the purposes or rights of the plank-road company, and so far as the rights of the public require it to be exercised, and this i-ule is especially applicable to the keeping down of encroachments. In consideration of the tolls received, the company relieves the public of the maintenance of the highway, but the public's right to use it for traveling remains unimpaired. Walker V. Caywood et al., 31 N. Y., 51; Estes v. Kelsey, 8 Wend., 555; Matter of Application of R. E. R. Co., 123 N. Y., 351. And the plank-road company may not turn the exclusive use of the highway over to a railroad company. Matter of Application of R. E. R. Co., 57 Hun, 56; 123 N. Y., 351. Village trustees, who have control of the streets of a, village, may not tear up a turnpike without notice or warning, even for the purpose of changing grade. F. & S. R. R. & T. Co. v. Village of Payetteville, 37 Misc., 223. Where a town meeting votes funds for the repair of a certain high- way, the commissioner may still use these funds for general highway purposes and are not compelled to use them for the purpose of repair- ing the particular highway for the repair of which they were voted. People ex rel. Penfield v. George, 38 N. Y. S. R., 345; 14 N. Y. Supp., 475; The Highway Law. 9 and see Board of Supervisors v. Phipps, 28 App. Div., 531; and Board of Supervisors v. Phipps, 35 App. Div., 350. Ordinarily, an abutter is not entitled to damages for a change of grade made in the repair of a highway. For a consideration of this entire question, see Hosmer v. City of Gloversville, 27 Misc., 669; L. 1883, ch. 113; L. 1894. ch. 172. But see § 11a, post As to power of commissioners to erect bridges, see Huggans v. Kiley, 125 N. Y., 88; Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346; Mather v. Crawford, 36 Barb., 564; and §§ 10, 130-145, and notes, post. The care of highways and bridges in cities and villages is generally distinct from that in towns. Matter of Certain Freeholders, 46 Hun, 620. Fines and commutations form part of the resources with which the com- missioner must perform his diities. Berlin iron Bridge Co. v. Wagner, 57 Hun, 346. See many additional cases under subd. 9 of this section, and under § 16, post. 2. Cause such highways as shall have been laid out, but not suiEciently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk's office. Eevised from 1 K. S., ch. 16, tit. 1, art. 1, § 1, subd. 3. For provisions as to laying out highways generally, see §§ 80-123, post. As to what are highways by use, see section 100 and notes, post. For form of description under this section, see No. 12, post. Where an unauthorized order has been made purporting to lay out and describe an ancient highway, the proper relief is for an aggrieved party to sue for a cancellation of the order as a cloud on title. Kiley v. Brodie, 23 Misc., 374. And not by an appeal from the order. Kelsey v. Burgess, 35 N. Y. S. E., 368; 13 N. Y. Supp., 169; The People v. Judges of Cortland Co., 24 Wend., 491; Wiggins v. Tallmadge, 11 Barb., 457. The mere fact that a highway has been laid out is not sufficient to constitute a highway. There must be an existing thoroughfare suitable for travel. Beckwith et al. v. Whalen, 70 N. Y., 430. But if there has been the requisite user of a road, it is subject to the provisions of this subdivision, regardless of any special acts governing particular towns. James v. Sammls et al., 132 N. Y., 239. The order of the commissioners cannot extend or change the location, of a highway by use beyond its width and location as shown by the user made of it. Ivory v. Town of Deerpark, 116 N. Y., 476; Snyder v. Plass^ 88 N. Y., 465; James v. Sammis et al., 132 N. Y., 239; Talmage v. Huntting^ 89 N. Y., 447; Cole v. Van Keuren, 4 Hun, 863; affd., 64 N. Y., 646; People v. Judges of Cortland Co., 24 Wend., 491; Purdy v. Moore, 73 App. Div., 715. 10 The Highway Law. For prescriptive rights are measured by the user which gives rise to them. Lewis v. New York & Harlem K. E. Co., 163 N. Y., 203, 235. A highway described under the provisions of this subdivision may be less than the statutory width. Harlow v. Humiston, 6 Cow., 189; see § 100, post. A person who takes land, described as bounded by the highway, is estopped to dispute the existence of the highway. De Witt v. Van Schoyk, 35 Hun, 103; afEd., 110 N. Y., 7. A certificate of commissioners defining a highway under this subdi- vision is admissible as evidence on the question of the location of the road. Ivory v. Town of Deerpark, 116 N. Y., 476. Though it is not conclusive when not based on user or record. Kelsey V. Burgess, 35 X. Y. S. R., 368; 12 N. Y. Supp., 169; see Jlogg v. West, 8 Week. Dig., 105. And the question is for the jury when the evidence is conflicting. Cole V. Van Keuren, 4 Hun, 262; afEd., 64 N. Y., 646. Laying out a highway to a landing place does not authorize the laying out of a landing place. Commissioners, etc., of North Hempstead v. Judges, etc., of Queens, 17 Wend., 9; Fowler v. Mott, 19 Barb., 204. That commissioners empowered to describe " old roads " cannot lay out as an old road land which has been dedicated to the public use. See Commissioners, etc., of North Hempstead v. Judges, etc., of Queens, 17 Wend., 9 and see § 80, post. Nor can commissioners lay out as an old road a road which has been laid out by an individual on his own lands. City of Oswego v. Oswego Canal Co., 6 N. Y., 257. 3. From time to time, not oftener than once a year, divide the town into so many highway districts as they shall judge convenient, by writing, under their hands, to be filed with the town clerk, and by him to be entered in the town book, at least ten days before an annual town meeting. A territory not exceed- ing one square mile, containing a population of not less than one hundred and fifty, and not including a part of a city or village, may be established as a separate highway district in the following manner: A verified petition of two-thirds of the electors of such territory representing two-thirds of the taxable property therein and describing the territory, may be presented to the highway com- missioner at least twenty days before the annual town meeting. The petition shall state the population of the proposed district, and the taxable persons and property as appears by the last preceding assessment roll of the town. A farm or lot shall not be divided in the formation of such district. Within ten days after the presentation of such a petition, the highway commissioner shall establish the district in the manner above required for other high- The Highway Law. 11 way districts. The higliway district so established shall not be abolished, except upon the petition or written consent of two-thirds of the electors representing two-thirds of the taxable property of the district. The highway commissioner may extend the highway district, so established not more than half a mile in any direction, and if it is so extended an order shall be entered accordingly. In a toAvn which has adopted the money system of taxation for high- way purposes the highway commissioner may divide such town into highway districts, whenever in his judgment such division is necessary for the proper maintenance and repair of the highways therein, and for the opening of highways obstructed by snow. Revised from 1 R. S., eh. 16, tit. 1, art. 1, § 1, subd. 5; L. 1873, ch. 395, § 6; amd. L. 1897, ch. 782; L. 1904, ch. 611, § 1; in efEect May 6, 1904. For form of order establishing highway district, see No. 13, post. For form of petition for a separate highway district, see No. 14, post. For form of order establishing a separate highway district, see No. 17, post. For form of petition abolishing' separate highway district, see No. 16, The effect of discontinuing a road district, which has been formed from other districts, is to restore the original districts to their former bounds. The People v. Sly, 4 Hill, 593. The object of this division into highway districts is to divide up among the overseers the highway labor that is to be performed, that the high- ways may more speedily receive the benefit of it. Chamberlain v. Taylor, 36 Hun, 24. 4. Assign to each of the highway districts such of the inhab- itants and corporations liable to work on highways, or who are assessed for highway taxes thereon, as they shall think proper, having regard to proximity of residence as much as may be. Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 1, subd. 6, and L. 1853, ch. 63, i 1; see L. 1837, ch. 431; amd. L. 1904, ch. 611, § 2; in efEect May 6, 1904. For provisions as to assessment of highway labor, see §§ 30-59a, post. For provisions as to performance of highway labor, see §§ 60-74, post. Form of assignment of highway labor, see No. 13, post. The commissioners have power over all the highway labor in the town, but they must regard proximity of residence as much as may be in assigning it. They act upon their own judgment and discretion in laying out road districts. Buffalo Plank Road Co. v. Commissioners of High- ways, etc., 10 How. Pr., 237. 5. On the fifteenth day of April of each year, make and file with the town clerk, a written appointment of a resident of each district, to be overseer of highways therein. The town clerk shall 12 The Hjghway Law. notify each overseer of his appointment, within ten days after the filing thereof, and the person so appointed and notified, shall there- upon become and be the overseer of highways vtdthin his district for one year, and until his successor shall be appointed. If any person so appointed overseer, shall refuse to serve or his office shall become vacant, the commissioner shall in like manner appoint some other person to be overseer. The board of supervisors of any county may, by resolution, adopted at an annual meeting of such board, fix another time when the appointment of such overseers of highways shall be made in that county. The overseers of high- ways ajjpointed in highway districts in towns which have adopted the money system of taxation for highway purposes shall perform such duties in respect to the maintenance and repair of highways and the opening of highways obstructed by snow in the districts for which they are appointed, as are prescribed by the highway connnissioners of such towns. Revised from L. 1865, eh. 522, § 7; L. 1868, eh. 791, § 1; L. 1880, ch. 503, § 1, and 1 R. S., ch. 16, tit. 1, art. 1, § 14; amd. L. 1900, eh. 399; L. 1901, ch. 135; L. 1904, ch. 611, § 3; in effect May 6, 1904. A person refusing to serve as overseer vv'hen appointed is liable to a penalty of ten dollars. Town Law, § 55, page 182, post. Acceptance of assessment list of highway labor is acceptance of office of overseer, § 34, post. For general duties, liabilities and compensation of overseers, see §§ 20-24, post. For form of appointment of overseers as required by this subdivision, see No. 18, post. For form of appointment to fill vacancy in the office of overseer, see No. 19, post. Under the former statute a commissioner of highways was required vrithin one week after the annual town meeting, to appoint as many over- seers of highways as there were road districts in the town. People ex rel. Myers v. Barnes et al., 114 N. Y., 317. 6. Eequire overseers of highways to warn all persons and cor- porations assessed to work on highways, to come and work thereon, with such teams and implements, and at such times as the said commissioners, or any one of them shall direct ; Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 1, subd. 7. For provisions as to giving notice to work, see §§ 60-61, post. For general provisions as to performance of highway labor, see §§ 60-74, post. 7. Expend all moneys raised and collected from the town at large for highway purposes, upon the highways and bridges situ- ated in, or upon the borders of the town, or highway districts The Highway Law. 13 assigned to tlie town in which, such moneys were raised and col- lected, in such proportion as they may deem just and proper; Revised from L. 1S78, ch. 377, § 2; see L. 1873, ch. 395, § 8. See cases under subd. 1 of this section, ante, and § 16, post, as to the discretion of commissioners of highways in the application of funds when they are insufficient to make all needed repairs. Payment of highway moneys to commissioners, § 2 and notes, ante: The fact that a town meeting has, at the time it voted money for repairs, specified certain roads upon which the money in question shall be expended, does not prevent the commissioners of highways using it for general highway purposes. People ex rel. Penfield v. George, 38 N. Y. S. E., 345; and see Board of Supervisors v. Phipps, 28 App. Div., 521; Board of Supervisors v. Phipps, 35 App. Div., 350. Subdivision 8. Have power to enter upon the lands of any person adjoining any of tlie rivers, streams or creeks of the state, drive spiles, throw up embankments and perform such other labor as may be necessary upon the banks of such rivers, streams or creeks for the purpose of keeping them or any of them within their proper channels and preventing their encroachment upon any of the highways of the state ; to enter upon any lands adjoining any highway, and which lands during the spring freshets or any time of high water are subject to overflow from such rivers, streams or creeks, and to remove or change the position of any fence or other obstruction which prevents the free flow of water under or through any highway, bridge or culvert whenever the same may be neces- sary for the protection of any highway; to protect such highways and the property of the town from damages by reason of such rivers, streams or creeks washing away their embankments, or changing the location of the channels; to enter upon any lands adjacent to any of the highways of the town and with the approval of the town board to remove any fence or other obstruction which causes snow to drift in and upon said highway, and erect snow fences or other devices upon such lands to prevent the drifting of snow in or upon any such highway ; and to agree with the owner qi any such lands upon the amount of damages, if any, sustained by him in consequence of such entry upon his lands and the perform- ance of the work herein authorized, and the amount of the damages so agreed upon shall be a town charge, and shall be audited and paid in the same manner as other town charges. If the commissioners are unable to agree with such OAvner upon the amount of damages thus sustained, the amount thereof shall be ascertained and deter- mined and paid in the same manner as damages for the laying out and opening of highways are required by law to be ascertained, 14 The Highway Law. determined and paid, where the commissioners and land owner are unable to agree upon the amount thereof. Added by L. 1891, ch. 212; amd. L. 1899, ch. 344; L. 1904, ch. 478, § 1; in effect April 28, 1904. Provisions for ascertaining damages upon laying out and opening highways, §§ 83-97, post. Provision for widening highways worn away by streams or other causes, L. 1893, ch. 607. Constitutional provisions as taking private property for public use. Constitution, art. 1, § 7, page 167, post. A town may be liable for negligence of commissioner in not seeing that highway is put in proper condition after a wash-out. Farman v. Town of Ellington, 46 Hun, 41; affd., 124 N. Y., 662. Where an act authorizing the taking of private property for public pur- poses provides for a just compensation to the owner, it is not uncon- stitutional because it omits to make the assessment and payment of damages a condition precedent to an entry upon and occupation of the premises for the purposes of a road. Smith v. Helmer, 7 Barb., 416. 9. Eequire overseers of highways to inspect highways and bridges in their respective districts before May first, and, within five days thereafter, to report in writing to the commissioners such repairs as they deem necessary. Within twenty days after the receipt of such reports, the commissioners of highways shall per- sonally inspect such highways and bridges in the town as are reported to be in need of repairs and shall, so far as practical, per- sonally superintend the repair thereof. Added by L. 1901, ch. 129. Hitherto it has been held that there was no duty on overseers of high- ways in regard to bridges (Bartlett v. Crozier, 17 Johns., 439), but this amendment seems to charge them with at least reporting defective bridges; see, also, notes to § 20, post. Form of report No. 20, post. As to general duty of commissioners to repair highways and bridges, see § 4, subds. 1, 9, ante, and §§ 95, 97, 130-145, post. Liability for defective highways and bridges, §§ 16-18, post. General duties of overseers, § 20, post. General powers and duties of commissioners of highways. Commissioners of highwa3 s are independent public ofiicers, and while acting as such commissioners by virtue of the powers conferred by statute, proceed independently of any direction on the part of the town, and they can affect the rights of towns in no other manner than that pre- scribed by statute. Flynn et al. v. Hurd, 118 N. Y., 19; People ex rel. Van The Highway Law. 15 Keuren v. Town Auditors, 74 N. Y., 310; People ex rel. Everett v. Super's, 93 N. Y., 397. They have no power to bind the town by contract for materials, or anything else of this order, regardless of any local custom authorizing Ihem so to bind the town. People ex rel. Bowles v. Burrell, 14 Misc., 217; People ex rel. Bevins v. Supervisors, 83 Hun, 398. And see cases under § 10, post. A commissioner of highways has no general authority, as such com- missioner to borrow money, or to give promissory notes, and thereby to bind his successors in office. Van Alstyne v. Freday, 41 N. Y., 174. The commissioners of highways are exclusively charged with the general care, superintendence, repair, and improvement of the high- ways and bridges within their towns. Matter of Application of E. E. E. Co., 123 N. Y., 351; .Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346. Commissioners have no power to authorize a nuisance upon the highway. The People v. Flower et al., 43 N. Y. S. E., 744; 17 N. Y. Supp., 444; affd., 139 N. Y., 621. Commissioners of highways may invest public funds lying in their hands and enforce securities taken therefor, but in so doing they assume the entire risk. Commissioners of Highways of Cortlandville V. Peck, 5 Hill, 215. Commissioners of highways are not liable individually for their acts, unless they were unauthorized or malicious. Myers v. Martin et al., 17 Week. Dig., 110. But a commissioner may be held liable in a civil action for failure to repair a highway. Hover v. Barkhoof, 44 N. Y., 113; People ex rel. Van Keuren v. Town Auditors, 74 N. Y., 310. A commissioner of highways may sue his predecessor in office to recover money in the hands of the latter at the end of his term. Victory v. Blood, 25 Hun, 515; appeal dismissed, 93 N. Y., 650. Street surface railroad may not cross highway without consent of local authorities. Matter of Syracuse and South Bay R. Co., 33 Misc., 510. For election of commissioners of highways, see Town Law, §§ 12, 15, pages 179, 180, post. Persons eligible to be commissioners of highways. Town Law, § 50, Public Officers Law (L. 1892, ch. 681), § 3. Oath of office of commissioners of highways. Town Law, § 51, page 182, post; Public Officers Law, § 10. Form, No. 8, post. Undertaking of commissioner of highways. Town Law, § 63, page 182, post; Public Officers Law, §| 11-15. Form No. 9, post. Term of office of commissioner of highways. Town Law, § 13, page 179, post; People ex rel. Lovett v. Eandall, 151 N. Y., 497. Vacancy in the office of commissioner of highways, Town Law, § 65, page 183, post. Eesignation of commissioner of highways, Town Law, § 64, page 183, *; Public Officers Law, § 21. Forms, Nos. 6, 7, post. 16 The Highway Law. Removal of commissioner of highways for misconduct in office, Pub- lic Officers Law, § 25a. Commissioners of hig'h%\ays are fence viewers. Town Law, § 21, page 180, post. (General provisions as to fences. Town Law, §§ 100-109. Purchase of apparatus for town fire company, ToT,vn Law, § 171. General duty of commissioners as to cattle straying upon highways, Code Civ. Proc, §§ 3082-3115; Town Law, § 22; Village Law, § 89, subd. 2. Compensation of commissioners of highways. Town Law, § 178, subd. 1, page 185, post. Delivery of books, etc., to successor in office. Town Law, § 84, page 184, post. § 5. Mile-stones and guide-boards. — Commissioners of high- ways may cause mile-boards or stones to be erected upon the highways in their town as they think proper ; they shall also cause guide-posts, with proper inscriptions and devices, to be erected at the intersectings of such highways therein, as they may deem necessary, which shall be kept in repair at the expense of the town, by the overseers of the highways of the districts in which they are respectively located. Upon the written application of five resident taxpayers of any town or twenty resident taxpayers of the county in which any such town is located to the commissioners of highways, requesting the erection of one or more guide-boards at the intersec- tion of highways in such town, the commissioner of highways shall cause to be erected at the intersections mentioned in such applica- tion such guide-boards, indicating the direction, distances and names of the towns, villages or cities to or through which such intersecting highways run. Such application shall designate the highway intersections at which such guide-boards are requested to be erected and may contain suggestions as to the inscriptions and devices to be placed upon such boards. The cost of the erection and maintenance of such board shall be a town charge. If the commissioner of highways refuses or neglects for a period of sixty days after receiving within* application to comply with the request contained in such application, he shall for such neglect or refusal forfeit to the town the sum of twenty-five dollars to be recovered by the supervisor in the name of the town, and the amount so recovered shall be set apart for the erection of such guide-boards. For penalties for injuring mile-stones and guide-posts, see § 153, post. Wilful or malicious injury to mile-boards, mile-stones or guide-posts punishable by imprisonment for two years. Penal Code, § 639. For provisions as to mile-stones and guide-posts on turnpikes, see Trans. Corp. L., § 136. f So in the original. The Highway Law. J 7 Erection of sign-boards and gates and stationing flagmen at railroad crossings. Eailroad Law, § 33. Form of application for erection of guide-boards, No. 21, post. § 6. Road machines and implements. — Commissioners of highways may, upon the request of one or more overseers of the highway districts of their town, contract for and purchase for such district or districts, upon credit or otherwise, a good and sufficient scraper and plow, or either of them, and if a majority of the tax- payers of one or more highway districts in any town, representing more than one-half of the taxable property in such district or in each of such districts, to be ascertained by the last preceding assess- ment roll and certified to as such by the town clerk of the town, petition the commissioner or commissioners of highways of such town therefor, such commissioners may together with the super- visor and overseer or overseers of such district or districts, contract for and purchase upon credit or otherwise, a road machine for the use of such district or districts, which implements shall be used, cared for and owned by such district or districts jointly. Such implements shall be paid for out of the highway tax of the district or districts for which they are purchased, and may be paid for in annual installments, not exceeding five. If purchased for more than one district the amount paid by each shall be in proportion to the amount of highway tax; a copy of the note or contract issued upon the purchase of such implements, shall be filed in the ofiicc of the town clerk of the town in which such town or road district is situated, and it shall be the duty of said town clerk to present a statement of the sum due thereon to the town board at each annual meeting thereafter for the audit of town charges, and the town board shall audit such sum and certify the same to the board of supervisors of the county. Not more than one-half of the highway tax of any district shall be applied in payment there- for, in any one year. The portion of such tax so applied, shall be required to be paid in money, and be assessed and levied upon the property of such district or districts, and collected in the same manner as other town charges are assessed, levied and collected except that the amount thereof shall be put in a separate column upon the tax roll, and the board of supervisors of the county shall cause the sum certified by the town board, to be levied upon the taxable property of such highway district. Such commissioner of highways shall with the assistance of the overseers of highways, in any road district which is to be charged with the payment for such machine after the completion of the assessment roll, and ten days before the meeting of the board of supervisors of the county, make and deliA'er to the supervisor of such town a list of the persons in 2 18 The Highway Law. sucli district or districts who are named in tlie last assessment roll of the town and chargeable with the payment of a tax for such machine. The commissioner or commissioners of highways may, also, with the approval of the town board, purchase and hold for the use of the town at large, one or more road machines, and pay for the same with money appropriated and set apart for highway purposes. It shall be the duty of the commissioner or commis- sioners of highways of each town to keep the road machines belonging to such town, or any road district or districts in such town in repair, if such repairs are reasonable, and pay the expenses thereof out of the general highway funds of the town, and also to provide a suitable place for housing and storage of all tools, imple- ments and machinery that are owned by the town or by the several highway districts and cause these tools and implements and machinery to be stored therein when not in use. When such repairs upon any road machine belonging to any road district or districts shall exceed the sum of eight dollars in any one year, such expense shall be assessed and levied upon the property of such districts in the same manner as above provided for the collection of the purchase money of said machines, and when collected shall be paid to the commissioner or commissioners of highways of said toMTi. Whenever any town shall change from the labor to the money system of working and repairing the highways, as provided in sections fifty and fifty-one of the highway law, all road machines owned within such town, whether by the town or by any road dis- trict or districts therein, shall be used by the highway commis- sioner or commissioners of such town in such manner and at such places in such town as the commissioner or commissioners of high- ways of such to^Ti shall deem best. The said machines shall be kept in repair by the commissioners or commissioner at the expense of such toAvn. Eevised from 1 K. S., ch. 16, tit. 1, art. 1, §§ 11, 12; L. 1890, ch. 493; amd. L. 1895, ch. 58C; L. 1896, ch. 987; L. 1898, ch. 155; L. 1904, ch. 153, § 1; in effect March 38, 1904. The statute imposing liability upon towns for defects in highways is broad enough to cover injuries resulting from the leaving of a road- scraper by the side of a road. Whitney v. Town of Ticonderoga, 127 N. Y., 40; but see Robinson v. Town of Fowler, 80 Hun, 101; Mullen v. Village of Glens Falls, 11 App. Div., 275. § 7. Stone crushers and materials.— The town board and commissioner or commissioners of highways of any town may, when authorized by a majority vote of the electors voting thereon, by ballot, at the annual or at a special town meeting, purchase a machine for crushing stone, a suitable roller, and such other machinery as may be necessary to be used, under the direction of The Highway Law. 19 the commissioner or commissioners of highways of said town, for the improvement of the highways thereof, and the commissioners of highways of any such town may, in any year, when authorized by a majority vote of the electors voting thereon, by ballot, at the annual or at a special town meeting expend in said year a sum not exceeding two thousand dollars, for the purpose of purchasing stone, and quarrying, breaking, crushing and placing the same on the highways, in such road district or districts as the town board may direct and defraying the expenses of operating such machine, and shall present the account and vouchers for said purchases and expenses to the town board for audit, and the amount audited, together with the cost of such stone-crushing machine, when not before included, shall be levied and collected as other town audits. Eevised from L. 1884, eh. 220, §§ 1-5; amd. L. 1895, ch. 411; L. 1902, ch. 129, in effect March 13, 1903. For special act authorizing the expenditure of additional sums in cer- tain towns adjoining cities of not less than 85,000 inhabitants, for grad- ing, macadamizing and improving highways, see L. 1895, ch. 499. Where a road machine is purchased pursuant to this section, the vendor of the machine is entitled to a peremptory writ of mandamus compelling tiie overseers and commissioners to perform the duty imposed upon them by the statute, viz., to make and deliver the list of persons chargeable with paj'ment of the tax for such machine. And where the petition for the purchase of the machine recites that the petitioners con- stitute a majority of the taxpayers representing more than one-half of the taxable property of the district, and such petition is certified by the town clerk, the truth of such recital cannot be inquired into upon man- damus proceedings, nor, it seems, can the relator's rights be defeated by producing affidavits showing fraudulent representations as to the machine, or that the machine was to be purchased after trial only and that after the trial it was rejected. People ex rel. Climax Co. v. Commis- sioner, 48 App. Div., 550. § 8. Custody of stone crushers.— Such machine, when pur- chased, shall be under the care and custody of the commissioners of highways of the town; and where there is an incorporated village constituting a separate highway district, in any town, they may, by an agreement with the trustees of the village, permit an equit- able use of the machine to such separate village district. Revised from L. 1884, ch. 230, § 3. § 9. Additional tax.- — ^ Whenever the commissioners of high- ways shall determine that the sum of five hundred dollars will be insufficient to pay the expenses actually necessary for the improve- ment of highways and bridges, the removal of obstructions caused by snow and the prevention of such obstructions, they may cause a 20 The Highway Law. vote to be takea by ballot at any town meeting, authorizing sudi additional sum to be raised as they may deem necessary for such purpose, not exceeding one-third of one per centum upon the taxable property of the town as shown by the last assessment roll thereof. Ue\ised from L. 1832, ch. 274, and L. 1S3T, ch. 615, § 1; amd. L. 1904, ch. 478, § 2; in effect April 28, 1904. Provisions for special town meeting, Town Law, § 23 et seg. The board of supervisors of a county may authorize towns to raise additional sums of money for highway purposes. County Law, §§ 69, 70, post, pages 173, 174. See Ghiglione v. Marsh, 23 App. Div., 61; People ex rel. Wakeley v. Mclntyre, 154 N. Y., 628. An omission to take the vote required by this section may be cured by the action of the town board. Edwards v. Ford, 23 App. Div., 277; see also Birge v. B. L B. Co. et al., 133 jV. Y., 477, and Berlin Iron Bridge Co. V. Wagner, 57 Hun, 346. § 10. Extraordinary repairs of highways or bridges.— If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe, the commissioner of highways of the town in which such highway or bridge may be may cause the same to be immediately repaired or rebuilt, if consented to by the town board, but if the expense thereof exceed five hun- dred dollars, it shall be done under a ^vritten contract therefor which must be approved by the town board and the commissioners of highways shall present the proper vouchers for the expense thereof to the town board, at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings. Revised from L. 1858, ch. 103, § 1; L. 1865, ch. 442, § 1; amd. L. 1895, ch. 666; L. 1899, ch. 84. For provisions where towns are jointly liable for a bridge see § 130 et seg., post. See notes to § 1, subds. 1, 9, ante, and § 11, post. Form of consent of town board, No. 22, post. Contracts made under this section should be in the name of the town. Town Law, § 182; Town of Saranac v. Groton Bridge Co., 55 App. Div., 134. The subsequent approval of the town board may cure a failure to obtain consent required by this section. Edwards v. Ford, 22 App. Div., 277; but it cannot be compelled by mandamus. People ex rel. Graham v. Studwell, 91 App. Div., 469. It seems that the provisions of section 10 are broad enough to author- ize the erection of a new bridge by a town. Hall v. Town of Oyster Bay, 61 App. Div., 508; and see People ex rel. Slater v. Smith, 83 Hun, 433. The Highway Law. 21 A commissioner of highways may replace a wooden bridge with an iron one, where the consent of the town board gave him discretion as to the construction of the bridge,, and mandamus will lie to compel the audit of a, claim where consent to the repairs was given by the town board. People ex rel. Slater v. Smith, S3 Hun, 433. While the consent of the town board is necessary, yet, when it is given, no conditions may be imposed as to the manner of receiving bids or the construction of the bridge. If the town board refuses to audit a claim because of a violation of conditions of this kind, certiorari will lie to review their proceedings. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun, 585. But see Town of Saranac v. Groton Bridge Co., 55 App. Div., 134, holding that a conditional consent is valid and that the conditions attached to the consent must be complied vyith. The determination of the town board that a bridge is unsafe and the adoption of a resolution to build a. new one is sufficient to authorize the commissioner to contract therefor, regardless of any attempted delay by the town board to obtain legal advice. Basselin v. Pate, 80 Misc., 368. Where appropriations made under § 19, post, are insufficient to meet the highway expenses, the commissioners should proceed to raise funds under this and the following section, and there is no provision of law whereby a commissioner of highways may contract any indebtedness which will bind the town except under this section, and any other indebtedness should be sued as a claim against the commissioners as such. Funds provided for current repairs may not be expended for former year's repairs. People ex rel. Peterson v. Clark, 45 App. Div., 65; Lyth & Sons v. Town of Evans, 33 Misc., 231; and see Wells v. Town of Salina, 119 N. Y., 280. And the existence of a local custom to buy materials for repairs upon the credit of the town does not affect this rule. People ex rel. Bowles v. Burrell, 14 Misc.. 317. But where the consent is given by the town board, though there be no funds on hand, the expenditures will be a claim against the town for which it would have to reimburse the commissioner of highways. Whit- lock V. Town of Brighton, 2 App. Div., 21; affd., 154 N. Y., 781. Tovsnas have no general power to borrow money for municipal purposes or to pay town charges. Wells v. Town of Salina, 119 N. Y., 380. A towB may not plead lack of funds as defense to an action for injuries sustained through a defective highway, when it could have raised funds under this section for the purpose of making the needed repairs. Whitlock v. Tovyn of Brighton, 2 App. Div., 21; affd., 154 N. Y., 781; McMahon v. Town of Salem, 25 App. Div., 1. A contract may be valid though the name of one commissioner was signed by another where the former knowing the fact, acts with the other commissioners afterward in reference to the bridge; as to the personal liability of commissioners on their contracts for highway purposes. Boots V. Washburn et al., 79 N. Y., 207. 22 The Highway Law. § 11. Auditing expense thereof. — The town board may be convened in special sessions by the supervisor, or in his absence, by the town clerk, upon the written 'request of any commissioners of highways, and the bills and expenses incurred in the erection or repairs of any such highways or bridges, may then be presented to, and audited by the town board; and the supervisor and town clerk shall issue a certificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished, and such certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. Revised from L. 1S58, ch. 103, § 2. See notes to § 10, ante, and § 13, post. Bequest to convene town board, No. 23, post. A town board having consented to the repair of a bridge must allow the reasonable expenses thereof, and mandamus will lie to compel them to do so. People ex rel. Slater v. Smith, 83 Hun, 432; but see People ex rel. Myers v. Barnes et al., 114 N. Y., 317. That certiorari viill lie to review the proceeding's of the town board in refusing to audit a claim for woi'k which they consented should be done, and that it is too late to question the necessity of the bridge after consent is given and the work done. See People ex rel. Groton Co. v. Town Board, 92 Hun, 585. ;? 1 la. Damages for ciiange of grade. — in any town in which a highway hereafter shall be repaired, graded and macadamized from curl) to curb by tlip authorities of tlie town in accord- ance Avith the provisions of section sixty-nine of chapter six hun- dred and eighty-six of the laws of eighteen hundred and ninety- two, the owner or owners of the land adjacent to the said highway shall be entitled to reen^'or from the town the damages resulting from any change of grade. A person claiming damages from such change of grade, effected since May fifteenth, nineteen hundred and three and prior to the passage of this act, must present to the toA\Ti board of such to^vn a verified claim therefor within ninety days after this act takes effect. A person claiming damages from such change of grade hereafter effected must present to the town board of such town a verified claim therefor within sixty days after such change of grade is effected. The board may agree with such owner upon the amount of damages to be allowed him. If no agree- ment be made ■^\'ithin thirty days after the i^resentation of the claim, the person presenting it may apply to the supreme court for the appointment of three commissioners to determine the compensa- tion to which he is entitled. Notice of the application must be served upon the supervisor of the town at least ten days before the The Highway Law. 23 hearing thereof. All proceedings subsequent to the appointment of commissioners shall be taken in accordance with the provisions of the condemnation law so far as applicable. Such town board, or such commissioners, shall, in determining the compensation, con- sider the fair value of the work done, or necessary to be done, in order to place the claimants' lands, or buildings, or both, in the same relation to the changed grade as they stood to the former grade, and make awards accordingly, except that said board or said commissioners may make aji allowance for benefits derived by the claimant from such improvement. The amount agreed upon for such damages, or the award therefor together with the costs, if any, allowed to the claimant, shall be a charge against such town and the supervisor shall pay the same, if there be sufficient funds in his hands available, and if not, the town board shall borrow money for the payment thereof, or issue certificates of indebtedness therefor. This act shall not affect any pending proceeding or action.* Added L. 1903, ch. 610; amd. L. 1904, ch. 443, § 1; in effect Sept. 1, 1904. Section is retroactive. Matter of Anderson, 178 N. Y., 416; but note amendment of 1904. Requirements of petition. Matter of Borup, 89 App. Div., 183. Change of grade in villages. Matter of Torge v. Vil. of Salamanca, 176 N. Y., 324. § 12. Accounts, how made out. — No account for services rendered, or material furnished according to the provisions of this chapter, shall be allowed by such board unless the same shall be verified in the same manner as town accounts are required by law to be verified, nor unless the commissioners of highways shall certify that the service has been actually performed, and the material was actually furnished, and that the same was so per- formed or furnished by the request of such commissioners; and the town board may require and take such other proof as they may deem proper, to establish any claim for such labor and material, and the value thereof. Revised from L. 1858, ch. 103, § 3. For verification of accounts against town, see Town Law, § 167, below. Form of account, verification and certificate, see Nos. 34-26, post. The Town Law (L. 1890, ch. 569), provides in § 167, as follows: " No account shall be audited by any board of town auditors, or supervisors, or superintendent of the poor, for any service or disburse- ments, unless such account shall be made out in items and accompanied with an affidavit attached thereto, and to be filed with such account, made by the person presenting or claiming the same, that the items of such account are correct, and that the disbursements and services charged therein have been in fact made or rendered, or are necessary to be made or rendered, at that session of the board, and stating that no part *Last sentence added, among others, by amendment of 1904. 24 The Highway Law. thereof has been paid or satisfied; and the chairman of the board or either of the superintendents may administer any oath required under this section." Fees of an attorney hired by a commissioner of highways to insti- tute proceedings to lay out a hig'hway are not a proper charge, but expenses of the commissioner of highways, after appointment of com- missictaers by the court, in support of the project, whether attorney's fees or otherwise, may be allowed. People ex rel. Bevins v. Supervisors, 82 Hun, 298; but see Clute v. Robison, 38 Hun, 283; Duntz v. Duntz, 44 Barb., 459. It was formerly held that costs awarded against a commissioner in an unsuccessful defense or proceedings to lay out a highway could not be recovered from the town until duly audited. Sherman v. The Town of Hamburg, 8 Hun, 643. A majority of the commissioners may act fully in hiring services, when the majority act with the knowledge of all. Furman v. Taylor, 41 N. Y. S. K., 791; 16 N. Y. Supp., 703; Boots v. Washburn, 79 N. Y., 207. And it has even been held that they could do so where the third com- missioner was not consulted at all. Clute v. Eobison, 38 Hun, 283. A claim for materials furnished upon request of a coinm.issioner of highways cannot be collected from the town, unless the claim is pre- sented to the to^vn board for audit as prescribed by the statute. Lyth & Sons V. Town of Bvans, 33 Misc., 221; People ex rel. Hamm v. Town Auditors, 43 App. Div., 22; People ex rel. Bevins v. Supervisors, 82 Hun, 298; People ex rel. Myers v. Barnes et al., 114 N. Y., 317. § 13. Unsafe toll-bridge. — "Whenever complaint in writing, on oath, shall be made to the commissioners of highways of any town in which shall be, in whole or in part, any toll-bridge belong- ing to any person or corporation, representing that such toll-bridge has from any cause become, and is unsafe for the public use, such commissioners of highways shall forthwith make a careful and thorough examination of such toll-bridge, and if upon the examina- tion thereof, they shall be of the opinion that the same has from any cause become dangerous or unsafe for public use, they shall thereupon give immediate notice to the owners of such toll-bridge, or to any agent of such owners, acting as such agent, in respect to such bridge, that they have on complaint made, carefully and thoroughly examined the bridge, and found it to be unsafe for the public use. Such owners shall thereupon immediately commence repairing the same, and cause such repairs to be made within one week from the day of such notice given, or such reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it in all respects, safe and convenient for public use; and for neglect to take prompt and effective measures so to repair The Highway Law. 25 the bridge, its owners shall forfeit twenty-five dollars; and shall not demand or receive any toll for using the bridge, until the same shall be fully repaired; and the commissioners of highways shall cause such repairs to be made; and the owners of the bridge shall be liable for the expense thereof, and for the services of the commissioners at two dollars per day; and upon the neglect or refusal to pay the same upon presentation of an account thereof, the commissioners of highways may recover the same by action, in the name of the town. Eevised from L. 1873, ch. 448, §§ 1-3. For general provisions as to repair and construction of bridges, see § 4, subds. 1, 9, ante, and §§ 130-145, post. Forms of complaint and order, Nos. 27-28, post. § 14. Drainage, sewer and water pipes in highways.— The commissioners of highways may upon written application of any resident of their town, grant written permission to lay and main- tain drainage, sewer and water pipes and hydrants under ground, within the portion therein described, of any highway within the town, but not under the traveled part of the highway, except across the same, for the purposes of sewerage, draining swamps or other lands, and supplying premises with water upon condition that such pipes and hydrants shall be so laid as not to interrupt or inter- fere with public travel upon the highway. The consent of the commissioner shall be executed in duplicate, signed by him and endorsed with the written approval of the supervisor and the acceptance of the applicant, and one of such duplicates shall be delivered to the applicant and the other filed with the town clerk. The consent shall also contain a provision to the effect that it is granted upon the condition that the applicant will replace all earth removed, and leave the highway in all respects in as good condi- tion as before the laying of such pipes ; that the applicant shall keep such pipes and hydrants in repair and save the town harmless from all damages which may accrue from their location in the highway; that upon notice by the commissioner, the applicant will make any repairs required for the protection or preservation of the high- way; that upon his default, such repairs shall be made by the com- missioner at the expense of the applicant, and such expenses shall be a lien prior to any other lien upon the land benefited by the use of the highway for such pipes or hydrants, and that the com- missioner may also, upon the applicant's default, revoke the per- mission for the use of the highway, and remove therefrom such pipes and hydrants. 26 The Highway Law. Eevised from L. 1873, ch. 63, §§ 1, 2; L. 1886, ch. 452, § 1; amd. L. 1897, ch. 204, § 1. Commissioners of highways are water commissioners. L. 1869, ch. 888; amd. L. 1888, eh. 527. Pipes of hot water, hot air and steam companies in highways. L. 1879, ch. 317. Pipes of Avater works company in highways. Trans. Corp. L., § 82; Kochester & L. O. W. Co. v. City of Rochester, 176 N. Y., 36. Gas and water pipes and sewers in county roads. L. 1890, ch. 555, § 8.. Gas pipes in highways. Trans. Corp. L., § 61. Pipes of pipe-line corporations in highways. Id., § 45. Water pipes in any roads of county to supply village. Village Law,. 5 226. For form of application under this section, see No. 29, post. For form of consent under this section, with indorsements, see Nos. 30-32, post. See NicoU v. Sands et al., 131 N. Y., 19, holding that the commissioners were not obliged to superintend the laying of pipes in a highway. § 15. Actions for injuries to highways. — The commissioners of highways may bring an action, in the name of the town, against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damag'es sustained or suffered or expenses incurred by such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such highway. Revised from L. 1855, ch. 255, §§ 1, 3; L. 1878, ch. 49, § 4. Penalties for injuries to highways, etc., § 153, post. Commissioner to recover these penalties, §§ 23, 164, post. Action to be in name of town, Town Law, § 182, post; and see Town of Clay V. Hart and Town of Fort Covington v. U. S. & C. R. E. Co., below. Dutj' of railroad corporations to restore highway at crossings to its original condition, see Railroad Law (L. 1890, ch. 565), § 11. Bringing an action in the name of the commissioners of highways for injuries to a highway and a nonsuit in that action will not bar a subse- quent action by the commissioners in the name of the town for the same injuries. The expense of abating a nuisance or making repairs chargeable to a defendant, may be recovered of him. Town of Clay V. Hart, 25 JUsc, 110; affd., 41 App. Div., 625. Highways are entitled to lateral support from adjacent lands whether they be in their natural state or in an improved condition, and one digging in such a way as to endanger a highway may be enjoined. The Highway Law. 27 Milburn v. Fowler, 27 Hun, 568; Finegan v. Eckerson, 26 Misc., 574; but see s. c, 33 App. Div., 233. Where commissioners of drainage without the consent of the town authorities cut a channel across a highway and do not properly bridge it, the commissioners of highways may maintain an action against them to compel the construction of a proper bridge. Town of Conewango V. Shaw, 31 App. Div., 354. A town may maintain an action to enjoin a traction company from tearing up and obstructing a highway without legal authority and to compel it to restore to its original condition that portion of the highway already torn up. Town of Eastchester v. N. Y. W. & C. Tract. Co., 30 Misc., 571; Town of Windsor v. D. & H. C. Co., 92 Hun, 127. A commissioner of highways had no power to prescribe how a railroad company should restore a railroad to its original condition, but he could maintain an action to compel it to do so. Post v. W. S. K. K. Co. et al., 123 N. Y., 580. And see Town of Palatine v. N. Y. C. & H. K. K. R. Co., 22 App. Div., 181. A town being responsible for the maintenance and repair of highway bridges can maintain an action against any one who negligently or wilfully injures them. Bidelman v. State of New York, 110 N. Y., 232; Town of Fort Covington v. U. S. & C. K. K. Co., 8 App. Div., 223; afEd., 156 N. Y., 702. And such an action is properly brought in the name of the town, and proof upon the trial of authority by a town meeting to bring the action is not necessary, and objection to authority to sue should be taken by motion. The complaint of such an action may be verified by the supervisors. Town of Fort Covington v. TJ. S. & C. K. R. Co., 8 App. Div., 223; afEd., 156 N. Y., 702. A private abutter may recover for injuries to a walk which he is obliged to maintain. Parish v. Baird, 160 N. Y., 302. For a consideration of the general duties of railroads in restoring and maintaining highways, see Allen v. Buflralo R. & P. R. Co., 151 N. Y., 434. The right of action against a railroad company for failing to restore a highway to its original condition is not barred by the statute of limitations, as the duty is a continuous one. Town of Windsor v. D. & H. C. Co., 92 Hun, 137. A railroad company in using a public highway must cause as little injury as may be. Wiley v. Smith, 25 App. Div., 351; Schild v. C. P. N. & E. R. R. Co., 133 N. Y., 446. The commissioner of highways must take care of the approaches to a railroad crossing. Bryant v. Town of Randolph, 133 N. Y., 70. § 16. Liability of towns for defective tiighways.— Every town shall be liable for all damages to person or property, sustained 28 The Highway Law. by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages, unless a verified statement of the cause of action shall have been presented to the super\'isor of the town, within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement. Revised from L. 1881, ch. 700, § 1. Duty to repair highway and bridges and keep same in order, § 4^ subds. 1, 9, ante, §§ 20, 130, et seq., post. For limitation of action for negligence see notes to § 18, post. Form of claim, No. 34, post. The provisions of this section are broad enough to impose a liability not only for injuries received from defects in the bed of the highvyay,. but also for injuries resulting from obstructions placed, or allowed, within the bounds of the highway, as leaving a road-scraper upon the side of the highway. Whitney v. Town of Ticonderoga, 127 N. Y., 40. Also injuries received from overhanging limbs. Embler v. Town of Walkill, 57 Hun, 384; afld., 132 N. Y., 222; and from a wooden aviming over a sidewalk, Hume v. Mayor, 74 N. Y., 264; and from a banner suspended in the street. Champlin v. Village of Penn Yan, 34 Hun, 33; 102 N. Y., 680. Also from an irregular pile of lumber left by the roadside. Quinn V. Town of Sempronius, 33 App. Div., 70; Burns v. Town of Farmington, 31 App. Div., 364; Tinker v. N. Y., Ontario & Western K. Co., 157 N. Y., 312. But not for injuries resulting from horses shying at a pile of ordinary stones of no unusual appearance. McCord v. Town of Ossining, 10 N. Y. S. E., 407; affd., 118 N. Y., 686; and see Mullen v. Village of Glens Falls, 11 App. Div., 275. The same duty of care imposed upon towns or commissioners of high- ways is imposed upon turnpike companies. Fox v. Union Turnpike Company, 59 App. Div., 363. And if the turnpike company fails in this duty and the public is thereby endangered, the municipality may make the necessary repairs and collect the expenses thereof from the company. F. & S. K. E. & T. Co. V. Village of Fayetteville, 37 Misc., 223. There was formerly no liability on a town to keep its highways and bridges in repair and no liability for injuries received through their defective condition. People ex rel. Loomis v. Board of Town Auditors, 75 N. Y., 316. And this was not changed until after the enactment of ch. 700 of the L. 1881; but there is a manifest difference between the liability of Th2! Highway Law. 29 villages and cities and that of rural towns and counties for the repair of their highways. Monk v. Town of New Utrecht, 104 N. Y., 552; Bush V. D., L. & W. E. E. Co., 166 N. Y., 210; Dorn v. Town of Oyster Bay, 84 Hun, 510; Albrecht v. County of Queens, 84 Hun, 399; Snowden v. Town of Somerset, 171 N. Y., 99. This statute had no retroactive effect and did not render towns liable for injuries received before it went into effect. Prasier v. Town of Tompkins, 30 Hun, 168. And this statute is to be strictly construed in favor of the town. Barber v. Town of New Scotland, 88 Hun, 522. Since the enactment of ch. 700 of the L. 1881, towns have been liable for neglect to keep their highways and bridges in repair, only where facts are shown which would, before the enactment of that statute, have been sufficient to have charged the commissioners of highways with actionable negligence. Acker v. Town of New Castle, 48 Hun, 312; Snowden v. Town of Somerset, 171 N. Y., 99. But the town is liable only in cases where before that statute the commissioners of highways would have been liable had they had funds to make the needed repairs, or had they had authority to procure such funds. Bryant v. Town of Eandolph, 133 N. Y., 70; Clapper v. Town of Waterford, 131 N. Y., 382; Lane v. Town of Hancock, 142 N. Y., 510; Barber v. Town of New Scotland, 88 Hun, 522. And a verdict against a town will be set aside where the evidence would not warrant a verdict against the commissioners for neglect to repair. Waller v. Tovyn of Hebron, 5 App. Div., 577; Patohen v. Town of Walton, 17 App. Div., 158. The prineiijle that the liability of a town for damages for personal injuries sustained by reason of the unsafe condition of a highway is, limited to the liability of its highway commissioners, does not apply to a city or village. Burns v. City of Yonkers, 83 Hun, 211. This liability extends to defects in any part of the traveled portion of the highway, including the part used for turning out when teams pass each other. Newell v. Town of Stony Point, 59 App. Div., 237; and see Whitney v. Town of Ticonderoga, supra. A town is not liable for an overflow of water where the defect, which caused the overflow, was not a defect in the highway, but was in continuing an insuflicient culvert erected by a turnpike company. There is no duty on towns to provide culverts to carry ofl: water in time of freshets. Barber v. Town of New Scotland, 88 Hun, 522. The decision of commissioners of highways to change the course of a highway to avoid a boulder is of a judicial nature, and the town is not liable for an error in judgment in so doing. Barrett v. Town of Walworth, 64 Hun, 526; and see Monk v. Town of New Utrecht, 104 N. Y., 552; also Patchen v. Tovm of Walton, 17 App. Div., 158, holding that the determination of commissioners of highways that certain 30 The Highway Law. precautions are unnecessary may be a defense to an action for injuries resulting from the omission of such precautions; but see Pelkey v. Town of Saranac, 67 App. Div. 337. A town may be held liable, though the negligence was not the negli- gence of the particular commissioner of highways in office at the time the action is brought. Shaw v. Town of Potsdam, 11 App. Div., 508; approved in Allen v. Town of Allen, 33 App. Div., 463. Towns are not obliged to keep the whole of a highway, from one boundary to the other, free from obstructions and fit for the use of travelers, though it must not allow an actual obstruction of apparent danger to travelers to remain in a highway. Barrett v. Town of Walworth, 64 Hun, 526. But see Whitney v. Town of Ticonderoga and Newell V. Town of Stony Point, supra. The negligence reqviired to be shown, in order to maintain an action, is the omission on the part of the commissioners of highways to use ordinary care under all the circumstances in the performance of the duty imposed by law upon them, which omission is proximate cause of the injury. The ordinary care referred to is such care and conduct as a reasonable and prudent person would have ordinarily exercised under the circumstances in question. Barber v. Town of New Scotland, 88 Hun, 522; Lane v. Town of Hancock, 142 N. Y., 510; Dorn v. Town of Oyster Bay, 84 Hun, 510; see Snowden v. Town of Somerset, 171 N. Y., 99. As to liability for omissions of commissioners de facto, see Parman V. Town of Ellington, 46 Hun, 41. Towns are not liable for injuries resulting from accidents which reasonable foresight and prudence would not have avoided or antici- pated. Sutphen v. Town of North Hempstead, 80 Hun, 409; Kerr v. Joslin, 49 N. Y. S. R., 257; 20 N. Y. Supp., 929; Snowden v. Town of Somerset, 171 N. Y., 99. And this immunity is extended to plank-road and turnpike corpora- tions charged with the duty of keeping highways in repair. Benedict v. Goit, 3- Barb., 459; Dexter v. Broat, 16 Barb., 337. See Fox v. Union Turnpike Co., 59 App. Div., 363, supra. The amount of care required to be exercised over highways in remote or sparsely settled districts is not as great as in villages or cities. Glasier v. Town of Hebron, 131 N. Y., 447; Waller v. Town of Hebron, 5 App. Div., 577. And the Town Law (L. 1890, ch. 569), § 2, making towns municipal corporations, has not changed this rule. Dorn v. Town of Oyster Bay, 84 Hun, 510. Failure to exercise vigilance to discover defects in an abutment of a bridge, which would have been apparent upon careful examination, constitutes negligence for which the town is liable. Boyce v. Town of Shawangunk, 40 App. Div., 593. The Highway Law. 31 Failure of commissioner to exercise reasonable diligence to see that the overseers carry out his directions as to care and repair of highways, may render the town liable for resulting injuries. Farman v. Town of Ellington, 46 Hun, 141; Fay v. Town of Lindley, 33 N. Y. S. E., 539; 11 N. Y. Supp., 355. A town is not liable to a person injured by an obstruction in u, highway placed there by legislative authority. Kiley v. Town of Green- burgh, 3 N. Y. Supp., 322; 21 N. Y. S. K., 434. Municipality not liable for injuries resulting from a defective bridge owned and maintained within its bounds by the state. Carpenter v. City of Cohoes, 81 N. Y., 21. A town is not liable for defects in a bridge M-hich was put up tempo- rarily by the commissioner of highways, acting as a volunteer and not oificially, the bridge being erected upon private property to replace a public bridge carried out by a freshet. Ehle v. Town of Minden, 70 App. Div., 275. Commissioners of highways are not liable (and it would follow that a town is not liable) for injuries resulting from defects in a bridge required to be kept in repair by a railroad company. Koe v. Town of Elmendorf, 52 How. Prac, 232; and see Bush v. D., L. & W. K. R. Co., 166 N. Y., 210; § 4, subd. 1, and notes, ante. A town which undertakes to maintain a highway across lands of a railroad company thereby assumes the responsibility of furnishing a safe way, even though it was not chargeable with the duty of originally constructing the road; nor does the obligation of the railroad company to afEord a suitable original construction of the crossing relieve the commissioners of highways of the duty of main- taining suitable approaches. Bryant v. Town of Randolph, 133 N. Y., 70; see Edwards v. Ford, 22 App. Div., 277. A railroad company which owns the fee of its right of way and has constructed a road along one side of it for the use of travelers, owes such travelers the same duty of protection that it owes travelers upon any public highway. Liekens v. Staten Island Midland E. R. Co., 64 App. Div., 327. A town was held not liable for a defect in a plank walk constructeQ by an adjoining owner, especially when the road was in good condition. Clapper v. Town of Waterford, 131 N. Y., 382. There can be no recovery where the only evidence of negligence is that a depression, several inches deep and several feet long, was per- mitted in a, highway. Grant v. Town of Enfield, 11 App. Div., 358. Where towns are jointly liable for the repair of a bridge and are jointly liable for its defective condition, it is not necessary to join both in an action for injuries received through such defective condition, but one alone may be sued. Clapp v. Town of Ellington, 87 Hun, 542; afld., 32 The Highway Law. 154 N. Y., 781; contra, Theall v. City of Yonkers, 21 Hun, 265; and see Hawxhurst v. Mayor, 43 Hun, 588. Or both may be joined as defendants. Shaw v. Town of Potsdam, 11 App. Div., 508. Lack of funds as a defense. Where the commissioners of highways have not funds with which to make repairs, and have no power to obtain such funds, the town cannot be held liable for injuries resulting from the defects left unremedied. ^Vhitlock V. Town of Brighton, 2 App. Div., 21; affd., 154 N. Y., 781; Monk V. Town of New Utrecht, 104 X. Y., 552; Clapper v. Town of Waterford, 131 N. Y., 383; Young \. Town of Macomb, 11 App. Div., 480; Quinn v. Town of Sempronius, 33 App. Div., 70; Boyce %. Town of Shawangunk, 40 App. Div., 593; McMahon v. Town of Salem, 25 App. Div., 1. Mere lack of funds alone is no defense. There must also be an inability to raise funds. Same cases, and Warren v. Clement, 24 Hun, 472. And it must also be shown that the commissioners have sought to avail themselves of all lawful means of raising funds and of the privilege afforded by § 10, ante, of making repairs with the consent of the town board, the expenditures for which become a town charge. Pelkey v. Town of Saranao, 67 App. Div., 337; Whitlock v. Town of Brighton, and McMahon v. Town of Salem, supra. And where a city seeks to defend on the ground of lack of funds, it must also show a lack of power under its charter to raise funds. Hines v. City of Lockport, 41 How. Prac, 435; 5 Lans., 16; afCd., 50 N. Y., 336. Lack of funds, and of power to raise them, is no defense to recover for injuries received through misfeasance, as for injuries resulting from an official act which was negligent, as contrasted with an omission to act at all. The action in such a case should be against the indi- viduals. Bennett v. Whitney, 94 N. Y., 303; and see Eector v. Pierce, 3 Thomp. & Cook, 416. Lack of funds is none the less a good defense though it is shown that the supervisor had funds applicable for repairs where the commissioner had demanded them of him and had not been negligent in instituting proceedings to compel payment over to him. Clapper v. Town of Waterford, 131 X. Y., 382. Where the commissioner has not funds sufficient to make all needed repairs, it is within his discretion to decide which repairs to make, and, unless his decision is induced by negligence or bad faith, neither the commissioner nor the town is liable for injuries received from the defects which he decided not to remedy, even though his decision was an error in judgment. Patchen v. Town of Walton, 17 App. Div., 158; The Highway Law. 33 young V. Town of Macomb, 11 App. Div., 480; Monk v. Town of New Utrecht, 104 N. Y., 552. And the commissioners are presumed to have exercised their discre- tion and to have acted in good faith in making the decision as to what repairs shall be made. People ex rel. Slater v. Smith, 83 Hun, 432; Garlinghouse v. Jacobs et al., 29 N. Y., 297. But a failure to exercise this discretion reasonably may render the town liable for the injuries received. Ivory v. Town of Deerpark, IIG N. Y., 476; and see Patchen v. Town of Walton, 17 App. Div., 158; Pelkey V. Town of Saranac, 67 App. Div., 337. And where the defect which caused the injuries in suit has existed for more than a year to the knowledge of the commissioner, it is to be presumed that there have been funds applicable to its repair. Whit- lock v. Town of Brighton, below; Warren v. Clement, 24 Hun, 472; Ivory v. Town of Deerpark, 116 N. Y., 476. Lack of funds, and power to raise them, is matter in defense, and must be established by the defendant. Whitlock v. Town of Brighton, 2 App. Div., 21; affd., 154 N. Y., 781; McNulty v. City of New York, 168 N. Y., 117; Boyce v. Town of Shawangunk, 40 App. Div., 593; Quinn V. Town of Sempronius, 33 App. Div., 70; Bullock v. Town of Durham, 64 Hun, 380. ITecessity of barriers or guards at dangerous places. The question of the duty to protect travelers from driving ofE a high- way, by placing barriers at dangerous places along the highway, has been considered in a great many cases, and towns have been held liable for failure to erect and maintain barriers of this kind in the following cases: Bryant v. Town of Eandolph, 133 N. Y., 70; Maxim v. Town of Champion, 50 Hun, 88; afCd., 119 N. Y., 626; Fay v. The Town of Lindley, 33 N. Y. S. K., 539; 11 N. Y. Supp., 355; Eeid v. The Town of Eipley, 37 N. Y. S. K., 590; 14 N. Y. Supp., 134. The same rule applies to highways maintained by turnpike companies. Fox V. Union Turnpike Co., 59 App. Div., 363. And one who makes an excavation on his own land so near a highway as to render travel dangerous may be held liable for failure to properly guard the excavation. Healy v. Vorndran, 65 App. Div., 353. But barriers are not necessary where travel is reasonably safe without them, and they were held unnecessary in the following cases: Patchen v. Town of Walton, 17 App. Div., 158; Glasier v. Town of Hebron, 131 N. Y., 447; Sutphenv. Town of North Hempstead, 80 Hun, 409; and see Monk v. Town of New Utrecht, 104 N. Y., 552. It has been held unnecessary under the circumstances of the case to place barriers between a lake and a highway. Koblee v. Town of Indian Lake, 11 App. Div., 435. 3 34 The Highway Law. The same duty of erecting barriers arises where improvements are being made, and the barriers are necessary to make the highway reasonably safe. JMcGuinness v. Town of Westchester, 66 Hun, 356; Snowden v. Town of Somerset, 171 N. Y., 99. Proof of long continued use of highways or bridges without guards or barriers, and entire freedom from accident during all that time, while proper to be submitted to the jury, is not controlling on the question of the necessity of guards or barriers. Maxim v. Town of Champion, 50 Hun, 88; afCd., 119 N. Y., 626; Pelkey v. Town of Saranac, 67 App. Div., 337; Wood v. Town of Gilboa, 76 Hun, 175; affd., 146 N. Y., 383; Bryant v. Town of Randolph, 6 N. Y. Supp., 438; 24 N. Y. S. E., 825; 2 Silv. Sup. Ct., 381; Hubbell v. City of Yonkers, 104 N. Y., 434. There is no necessity of erecting barriers sufficient to stop a team which is running away without restraint, but if it is shown that the omission to erect one was one of the proximate causes of plaintiff's injuries, the omission will render the town liable. Stacy v. Town of Phelps, 47 Hun, 54; Ivory v. Town of Deerpark, 116 N. Y., 476; Wood V. Town of Gilboa, 76 Hun, 175; afed., 146 N. Y., 383. No special precautions need be taken for the safety of bicyclists. Eeasonable safety for ordinary travel is all that is required. Sutphen V. Town of North Hempstead, 80 Hun, 409. See also, on the question of the necessity of guards and barriers, Lane v. Town of Hancock, 67 Hun, 623; affd., 142 N. Y., 510; Van Gaas- beck V. Town of Saugerties, 82 Hun, 415; afEd., 154 N. Y., 767. Notice of defective condition. Where the commissioner of highways has no notice, actual or con- structive, of the defective condition which caused plaintill's injuries, the town cannot be held liable. Eiley v. Town of Eastchester, 18 App. Div., 94, and cases below. Notice of the defective condition of a highway may be implied from the continued existence of the defect, and notice to the commissioner of highways is notice sufficient to charge the town. Spencer v. Town of Sardinia, 43 App. Div., 472; and see Malloy v. The Town of Pelham, 4 N. Y. S. E., 828; 25 Week. Dig., 277; Ivory v. Town of Deerpark, 116 N. Y., 476. Ten years' continuance of the defective condition of a highway has been held to imply notice of the defects sufficient to charge the town with liability for injuries occasioned by the defect. Ivory v. Town of Deerpark, supra. Notice has also been implied from the absence of a railing on a bridge for four years. Bullock v. Town of Durham, 64 Hun, 380; and see Pelkey v. Town of Saranac, 67 App. Div., 337. The Highway Law. 35 Notice has also been implied from the existence of a small hole in the sidewalk of a bridge for a period of two weeks. Foels v. Town of Tonawanda, 75 Hun, 363. But no notice will be imputed of a latent defect of only a few hours' existence. Eiley v. Town of Eastchester, 18 App. Div., 94. Admissions and declarations of officers of the town made after the accident may be shown to prove notice. Shaw v. Town of Potsdam, 11 App. Div., 508; Vandewater v. Town of Wappinger, 69 App. Div., 325; but see Stone v. Town of Poland, 58 Hun, 21. But evidence of subsequent repairs is not admissible on the question of neg-ligence. Corcoran v. Village of Peekskill, 108 N. Y., 151; Clapper V. Town of Waterford, 131 N. Y., 382; see Stone v. Town' of Poland, It is not always necessary to J)rove notice of the defective condition to the particular commissioner of highways who is in office at the time of the accident. Shaw v. Town of Potsdam, 11 App. Div., 508; Allen V. Town of Allen, 33 App. Div., 463. Contributory negligence. One who is chargeable with contributory negligence cannot recover for the injuries which he may have received. The following circumstances have been held to amount to such contributory negligence as would debar a recovery: Crossing a bridge when the stream was swollen, and the person cross- ing Icnew the condition of the bridge. Day v. Grossman, 1 Hun, 570; 4 Thomp. & Cook, 122. Driving upon a bridge of proper width with a load so wide as to spread the supporting braces. Lawson v. Town of Woodstock, 20 Week. Dig., 570. Crossing a swinging bridge, known to be such, at night and without observing whether open or closed. Splittorf v. State of New York, 108 N. Y., 205. Using an old and badly worn harness for hauling a heavy load on a dangerous road. Patchen v. Town of Walton, 17 App. Div., 159. As to failure to inspect bridge before crossing with traction engine, see Heib v. Town of Big Flats, 66 App. Div., 83. The charge of contributory negligence was not sustained under the circumstances of the following cases: Allowing horses to choose their way on a verj' dark night. Rector V. Pierce, 3 Thomp. & Cook, 416. Walking into an unguarded excavation in the approach of a bridge. Chisholm v. State, 141 N. Y., 246. As to contributory negligence by a bicyclist, see Sutphen v. Town of North Hempstead, 80 Hun, 409. 36 The Highway Law. A traveler has the right ordinarily, and in the absence of visible obstructions, to assume that the highway is in safe condition. Fay v. The Tovpn of Lindley, 3.8 N. Y. S. E., 539, 11 N. Y. Supp., 355; McDermott V. Conley, 33 N. Y. S. E., 560, 11 K. Y. Supp., 403; Weed v. Village of Ballston Spa, 76 N. Y., 320; Snowden v. Town of Somerset, 171 N. Y., 99. Even though he may have previousl}- known of the defect. Weed v. Village of Ballston Spa, supra. One passing along a sidewalk is justified in presuming it to be in a safe condition and is not bound to use special care to prevent falling into an uncovered area. McGuire v. Spenee, 91 N. Y., 303. So one approaching a highway bridge presenting no apparent defects may assume that it is safe and proceed upon it. Bidwell v. Town of Murray, 40 Hun, 190; see, also. Burns v. Town of Farmington, 31 App. Div., 364; Lynch v. Village of Xew Rochelle, 78 Hun, 207; Morell v. Peck et al., 88 N. Y., 398. Presentment of claim. The presentment of the statement of the cause of action as prescribed by this section is an absolute condition precedent to the maintenance of an action for injuries from defects in highways. Borst v. Town of Sharon, 24 App. Div., 599; Eeining et al. v. City of Buffalo, 102 N. Y., 308; Missano v. Mayor, 160 N. Y., 123; Sheehy v. City of New York, 160 N. Y., 139; Jewell v. City of Ithaca, 39 Misc., 499; afEd., 72 App. Div., 220; Curry V. City of Buffalo, 135 N. Y., 366. For an elaborate discussion of these requirements of notice of claims against municipalities, see Barry v. Village of Port Jei'vis, 64 App. Div., 268. Failure to allege presentment of claim in the complaint may be taken advantage of at any stage of the proceedings. Olmstead v. Town of Pound Ridge, 71 Hun, 25; Eeining et al. v. City of Buffalo, supra. Some liberality seems to be shown with reference to the contents of the notice of claim, and it is held that the notice will be sufficient in respect to its contents if it brings the general nature of the claim to the notice of the supervisor of the town by a general allegation of the defect in the highway, of the nature of the accident and injuries, and of plaintiif's freedom from contributory negligence. Quinn v. Town of Sempronius, 33 App. Div., 70; Spencer v. Town of Sardinia, 42 App. Div., 472; Missano v. Mayor, 160 N. Y., 123; Sheehy v. City of New York, 160 N. Y., 139. But a letter written by plaintiff's attorney will not be taken as a sufficient statement of the cause of action as required by this section. Borst V. Town of Sharon, 24 App. Div., 599. It seems that the supervisor cannot waive presentation of the state- ment required by this section. Borst v. Town of Sharon, 24 App. Div., 599; and see Kennedy v. The Mayor, 34 App. Div., 311. The Highway Law. 37 Miscellaneous cases. ~' It seems that a city need not be joined in an action against a town to recover for damages due to defects in a highway, even though the negligent commissioners of highways were elected by the inhabitants of a district now embraced within the city which was incorporated after such election. Embler v. Town of Walkill, 133 N. Y., 222. A telegraph company using a highway must use it subject to the public use, and where it uses it in such a manner as to endanger travelers, it is liable for the resulting damages. Sheldon v. Western Union Telegraph Co., 51 Hun, 591; affid., 121 N. Y., 697; Staring v. Western Union Tele- graph Co., 34 N. Y. S. K., 508; 11 N. Y. Supp., 817. See notes to § 104, post. But a telegraph company is not oound to insure the safety of travelers, and where it uses reasonable foresight in selecting, erecting and main- taining its poles, it incurs no liability for resulting damages. Ward v. Atlantic and Pacific Telegraph Co., 71 N. Y., 81. One who is repairing a highway may be liable for injuries resulting from a dangerous condition created by him, as, for example, leaving the middle of three piles of asphalting materials in a highway without a light, though the two other piles are marked with lights. Eeilly v. Sicilian Asphalt Paving Co., 16 Misc., 65. See, also, Wood v. Third Ave. K. E. Co., 91 Hun, 276; afCd., 157 N. Y., 696; Coxhead v. Johnson, 20 App. Div., 605; 21 App. Div., 626; 156 N. Y., 680. And the fact that the highway in question was never established by legal proceedings is not a defense to one who renders it unsafe. Devine v. Brooklyn Heights R. R. Co., 1 App. Div., 237. Municipal permission to carry on work in a highway affords no defense where the work is negligently done, or necessary precautions are omitted, and if a recovery is had against the municipality, it may recover over against the one causing the defective condition. Village of Port Jervis v. First National Bank, 96 N. Y., 550; Flynn v. N. Y. Elevated E. E. Co., 49 Supr. Ct., 60. As for liability of abutting owners for repair, negligent condition, etc., of streets or sidewalks, see Tinker v. N. Y., O. & W. E. Co., 157 N. Y., 312; Strumwald v. Schrieber, 69 App. Div., 476; Eohling v. Eich, 23 App. Div., 179; Matthews v. DeGrofE, 13 App. Div., 356; Law v. Kingsley, 82 Hun, 76; and § 43, post, and notes thereunder; also, Town of Clay v. Hart, 25 Misc., 110, 115; affd., 41 App. Div., 625; City of Eochester v. Campbell, 123 N. Y., 411. It has been held that counties are not liable for defects in bridges, nor for the negligence of any of their officers, and particularly where the claim has not been presented to them for audit. See Albrecht v. County of Queens, 84 Hun, 399; Ahern v. County of Kings, 89 Hun, 148; Markey v. County of Queens, 154 N. Y., 675. 38 The Highway Law. § 17. Action by town against commissioners.— If a judg- ment shall be recovered against a town for damages to persons or property, sustained by reason of any defect in its highways, or bridges, existing because of the neglect of any commissioner of highways, such commissioner shall be liable to the town for the amount of the judgment, and interest thereon; but such judgment shall not be evidence of the negligence of the commissioners in the action against him. Revised from L. ]SS1, oh. 700, §§ 1-3. Duty of commissioners to repair, § 4, ante. Liability of town for defects, § 16, ante. As to issuing execution against public officer, see Code Civ. Proc., § 1931. Of course, a commissioner is not liable for injuries resulting from the negligence of his jpredecessors in office. Lament \. Haight, 44 How. Prac, 1. Though a town roaj- be liable for negligence of commissioners whose terms of office have expired. Shaw v. Town of Potsdam, 11 App. Div., 508; Allen v. Town of Allen, 33 App. Div., 463. That the liability of the commissioner to the town under this section is the test as to the liability of the town to a person injured by a defective highway, see Waller v. Town of Hebron, 5 App. Div., 577, and cases under section 16, ante. Actions by towns against commissioners are seldom, if ever, brought, and if brought, are usually unsuccessful. Lane v. Town of Hancock, 142 N. Y., 510. § 18. Audit of damages without action.— The town board of any town may audit as a town charge, in the same manner as other town charges are audited, any one claim not exceeding five hun- dred dollars, for damages to person or property, heretofore or here- after sustained by reason of defective highways or bridges in the town, if in their judgment it be for the interest of the town so to do; but no claim shall be so audited, unless it shall have been presented to the supervisor of the town, within six months after it accrued, nor if an action thereon shall be barred by the statute of limitations. The town board may also audit any unpaid judg- ment heretofore or hereafter recovered against a commissioner of highways for any such damages, if such town board shall be satis- fied that he acted in good faith, and the defect causing such damage did not exist because of the negligence or misconduct of the com- missioner, against whom such judgment shall have been recovered. Revised from L. 1881, ch. 700, § 4, and L. 1889, ch. 146. Liability of town for defective highways, § 16, ante. The Highway Law. 39 Presentation of claim as a condition precedent to suit, § 16, ante. Limitation of an action for injury to person from negligence is three years. Code of Civ. Proc, § 383, subd. 5. Limitation of action for injury to property from negligence is six years. Id., § 382, subd. 3. i , i ; ^ Audit of town charges generally. Town Law, §§ 162-170. ' ' si Audit includes hearing, examining, adjusting and allowing or rejecting. People ex rel. Myers v. Barnes et al., 114 N. Y., 317. Formerly judgments against commissioners of highways for injuries received from defects in highways resulting from negligence of com- missioners could not be audited as town charges. People ex rel. Loomis V. Board of Town Auditors, 75 N. Y., 316. As a general rule, no claim is obligatory upon or enforceable against a town until properly audited and a town board's decision upon an application for the audit of claims is final until reversed by certiorari, and will not be disturbed by mandamus. People ex rel. Myers v. Barnes et al., 114 N. Y., 317; but see People ex rel. Slater v. Smith, 83 Hun, 432. § 19. Reports of commissioners. — The commissioners of highways of each town shall make to the town board, at its meeting held on the Tuesday preceding the biennial town meeting, and on the corresponding date in each alternate year, or, in towns where the biennial town meetings are held at the time of the general election, on the third Tuesday of December in each year a written report stating: 1. The labor assessed and performed; 2. The sum received by them for penalties, commutations and all other sources, and an itemized account of all moneys paid out during the year, with receipts or vouchers in full by the respective parties to whom such money was paid, which account and each and every receipt or voucher is to be filed forthwith with the town clerk of the town, and be open to public inspection during the office hours of such clerk. 3. The improvements which have been made on the highways and bridges, during the year immediately preceding such report, and the state of such bridges, and the highways in each highway district; they shall also make at the second meeting of said board in each year, a statement of the improvements necessary to be made on such bridges, and the highways in each highway district, and an estimate of the probable expense thereof, beyond what the labor to be assessed in that year will accomplish; a duplicate of which shall be delivered by the commissioners to the supervisor of the town, who shall present such duplicate statement to the board of supervisors, who shall cause the amount so estimated, not exceeding 40 The Highway Law. five hundred dollars in any one year, to be assessed, levied and collected in such town, in the same manner as other town charges. Revised from 1 R. S., ch. 16, tit. 1, art. 1, §§ 3, 4; L. 1884, ch. 396; L. 1873, ch. 395, § 7; amd. L. 1901, chs. 35, 437; subd. a amd. L. 1902, ch. 258; in effect March 27, 1902. For additional matter to be contained in commissioners' report, see § 139, post. Additional report of commissioner, § 187, post. General powers and duties of commissioner, § 4, ante. Dates and proceedings of meetings of town board. Town Law, §§ 160-162. Money raised by taxation for highway purposes to be paid by tax collector of town to commissioner of highways. Tax Law, § 56; and see § 2, ante. For form of reports under this section, see Nos. 34, 35, post. See People ex rel. Peterson v. Clark, 45 App. Div., 65, in notes to § 10, ante, for procedure when appropriations under this section are insufficient. § 20. General duties of overseers. — Each overseer of high- ways in every town, shall 1. Eepair and keep in order the highways within his district. 2. Warn all persons and corporations assessed to work on the highways in his district, to come and work thereon. 3. Cause the noxious weeds within the bounds of the highway* within his district, to be cut down or destroyed twice in each year, once before the first day of July, and again before the first day of September; and the requisite labor therefor shall be considered highway work. 4. Collect all fines and commutation money, and execute all lawful orders of the commissioners. *§ 5. Cause all loose stone lying in the beaten track of every highway within his district, to be removed once in every month, from the first day of April until the first day of December, in each year. Stones so removed shall not be thrown into the gutter, nor into the grass adjoining such highway, but they shall be conveyed to some place, from which they shall not work back or be brought back into the track by the use of road machines or other imple- ments used in repairing such highways. Any person who shall violate the provisions hereof or who shall deposit or throw loose stones in the gutter or grass adjoining a highway or shall deposit or throw upon a highway ashes, papers, stones, sticks, or other ♦So in the original. The Highway Law. 41 rubbish, to the detriment or injury of the public use of, or travel upon such highway, shall be liable to a penalty of ten dollars, to be sued for and recovered by the commissioner or commissioners of highways, or in case of his or their refusal or neglect to act, by any taxpayer of the town in the name of the town in which the offense shall be committed, and when recovered, one-half of the amount shall be applied by them in improving the highways and bridges in such town. The other half shall be paid to the person upon whose written information the action was brought. Any commis- sioner of highways who shall neglect to prosecute for or join in an action with the other commissioners of highways to recover such penalty, knowing the same to have been incurred, or within twenty days after a sworn statement has been laid before them showing that a party is liable to such penalty, shall be guilty of a misdemeanor. 6. Cause the monuments erected or to be erected, as the boundaries of highways, to be kept up and renewed, so that the extent of such highway boundaries may be publicly known. Eevised from 1 E. S., ch. 16, tit. 1, art. 1, §§ 6, 7; subd. 5, amd. L. 1898, ch. 352; L. 1901, ch. 54; L. 1903, eh. 166, in effect March 14, 1902. Kepairs of highways generally, § 4, subds. 1, 9, ante. Appointment of overseers, § 4, subd. 5, ante. Requiring overseers to warn persons to work, § 4, subd. 6, ante. Duty of overseers to report condition of highways and bridges to commissioners, § 4, subd. 9, ante. Farther duties of overseers, §§ 21-24, 31, 35, 42, 46 and 60-70, 100, post. Overseers forfeit ten dollars for refusal to serve. Town Law, § 55, post; and notes to § 22. Kefusal to serve vacates office; commissioner to appoint successor, § 4, subd. 5, ante. Acceptance of list of assessments for highway labor is acceptance of iiJfice of overseer, § 34, post. Town officers must take and file an oath of office. Town Law, § 51, page 182, post. And while overseers are not always considered tovyn officers, they generally take and file the oath. See, also. Public Officers Law, § 10. For form of oath of office, see No. 8, post. Noxious weeds generally, §§ 70-71, and notes, post. Town Law, § 22, subd. 5, page 180, post. Also, County Law, § 12, subd. 7, page 169, post. Supervisors may cause monuments to be erected to locate highways, County Law, § 72, page 176, post. Overseers have no jurisdiction over " county roads," § 58, post. Compensation of overseers, § 24, post. 42 The Highway Law. Commutation money of corporations to be paid to commissioner, § 62, post. Power of overseers to procure gravel for repair of highways. L. 1891, ch. 309, page 201, post. All povifers and duties of overseers are subject to the control of the commissioners of highways and the overseers are subordinate to them. Bartlett v. Crozier, 17 Johns., 439; Farman v. Town of Ellington, 46 Hun, 41; affd., 124 N. Y., 663; Day v. Day, 94 N. Y., 153. With respect to bridges the commissioner of highways and not the overseer is the responsible party, and the only liability' of the overseer is for a penalty for failure to jjerform his duty. Bartlett v. Crozier, 17 Johns., 439; Taylor v. Town of Constable, 57 Hun, 371. And the duty of the overseer to keep highways in order does not relieve the commissioner of highwaj's of his duty to keep both the high- ways and bridges in repair, and the care of the latter devolves upon the commissioner al<.ne, who should supply both the means and instruc- tions to the overseer for his wo]-k. Farman \ . Town of Ellington, 46 Hun, 41; affd., 124 ^f. Y., 662. But see subd. 9 of § 4, tiiite, added by ch. 129, L. 1901, which apparently extends the duties of an overseer to a determination of the necessarj- repairs required by bridges as well as highways. An overseer may recover against a town for injuries received from defects in a bridge. Taylor v. Town of Constable, 57 Hun, 371. Neither overseers nor commissioners are agents of the town; an overseer ma3' not appeal an action arising from his official acts, where the case has been decided adversely to him, nor may he demand indemnity from the town for his costs. People ex rel. Van Keuren v. Town Auditors, 74 N. Y., 310. Fines and commutation moneys received by overseers to be expended on highways. Farman v. Town of Ellington, 46 Hun, 41; afEd., 124 N. Y., 662. The overseer should, under liability to a penalty for failure, remove obstructions and perform the various duties mentioned in this section, save warning persons to work, without special order from the commis- sioner. Quaere as to warning to work. (See § 4, subd. 6, ante.) McFadden V. Kingsbury, 11 Wend., 667. § 21. Opening obstructed highways. — Whenever the labor in any district has been worked out, commuted for, or returned to the supervisor or in those towns that have adopted the money system of taxation for working the highways, the moneys voted at the town meetiag for the removal of obstructions caused by snow and the prevention of such obstructions has been expended and the highways are obstructed by snow, and notice has been given to the overseer or highway commissioner in writing, by any two or The Highway Law. 43 more inhabitants of the town, liable to the payment of highway tax, requesting the removal of such obstruction, the overseer of highways in such district or the highway commissioner of the town shall immediately call upon all persons, corporations and occu- pants of lands owned by nonresidents liable to highway tax therein or in the locality where such obstruction exists, to assist in remov- ing such obstruction and such labor so called for by the overseer or highway commissioner, shall be assessed upon those liable to per- form the same or in the locality where such obstruction exists, in proportion to their original assessments. Should any persons, corporations or occujiants of lands owned by nonresidents so called out neglect or refuse to appear at tlie place designated by the over- seer or the commissioner of highways, or to commute at a dollar a day within twenty-four hours after due notice, the overseer or commissioner of highways shall cause the obstruction to be imme- diately removed, and on or before September first of each year, or at such other time as the board of supervisors may by resolution prescribe, make out a list of all persons, corporations or occupants of lands owned by nonresidents who shall fail to Avork out such labor or commute therefor, with the number of days not worketl or commuted for by each, charging for each day in such list at the rate of one dollar and fifty cents per day, verified to the effect that such persons, corporations or occupants of lands owned by nonresidents have been notified to appear and perform such labor or commute therefor, and that the same has not been performed or commuted; said list shall be certified by the commissioner of highways of such town to the town board and by said town board to the board of supervisors, and the amount of such arrearages shall be levied by said board of supervisors against and collected from the real or personal estate of such persons and corporations and from the real estate owned by nonresidents specified in such list in the manner now provided by law for the return, assessment and collection of arrearages for unperformed highway labor. Each overseer of highways and highway commissioner neglecting to per- form such duties shall be liable to a penalty of five dollars per day, for every day he neglects, without good and sufficient reasons, to have such highway opened after receiving such written notice, and for each day after September first or the day so fixed, he neglects to make out, verify and deliver such list, the penalty to be collected in justice's court by the supeiwisor in the name of the town and i>aid over to the highway fund of the town. No persons or corporations shall be allowed any sum for highway labor per- formed in removing obstructions caused by snow unless authorized or directed by the overseer or commissioner of highways to per- form such labor. No moneys collected or received under section 44 The HiorwAY Law. fifty-three shall be appropriated for removing obstructions caused by snow or preventing such obstructions. Revised from L. 1868, ch. 791, § 3, and L. 1869, cli. 593; amd. L. 1902, ch. 323; L. 1904, ch. 478, § 3; in effect April 28, 1904. Abatement of taxes for removal of fences to prevent drifting of snow, § 72, post. Obstruction of hig-hways and opening obstructed highways, §§ 104-105, post. Act for raising additional money for removal of fences to prevent drifting of snow, see L. 1890, ch. 391, page 203, post. See notes imder §§ 104-105, post, for law and practice in cases of obstructions to or encroachments upon highways. Form Xo. 36, iwst. § 22. Penalties against overseers.— Every overseer of high- ways who shall refuse or neglect, 1. To warn the persons and corporations assessed to work on the highways, when he shall have been required so to do, by the commissioners or either of them. 2. To collect the moneys that may arise from fines or commutations. 3. To perform any of the duties required by this chapter, or which may be enjoined on him by the commissioners of highways of his town, and for the omission of which no other penalty is pro- vided, shall for every such refusal or neglect, forfeit the sum of ten dollars. Revised from 1 R. S., ch. 16, tit. 1, art. 1, § 16. Recovery of penalties generally, §§ 23, 164, post. Overseer liable to penalty of ten dollars for refusal to serve. Town Law, § 55, page 182, post. Under the former act it was held that a person who had Incurred the penalty for refusing to serve as overseer could not be again appointed and made liable to a second penalty. Haywood v. Wheeler, 11 Johns., 432. A person who has been chosen an overseer of highways and entered upon his duties as such, and thereby become an overseer de faoto, hut has never qualified so as to become an overseer de jure, cannot be held liable to a penalty for omissions of duty; but he might be liable to a penalty for not accepting the office. Bentley v.- Phelps, 27 Barb., 524. It is the duty of an overseer to remove obstructions whether ordered to do so by the commissioner of highways or not, and in case of his refusal The Highway Law. 45 or neg'lect, he is liable to the penalty. McPadden v. Kingsbury, 11 Wend., 667. § 23. Penalties^ how collected. — The commissioners of high- ways shall prosecute, in the name of the town, every overseer of highways, for any penalties known to the commissioners to have been incurred by the overseer. They shall also upon the com- plaint of any resident of the town, that any such penalty has been incurred, prosecute such overseer therefor, if satisfied that the complaint is well founded. The costs and expenses incurred by the commissioners in good faith, in such proceedings, shall be a town charge, to be audited by the town board. If the commis- sioners refuse or neglect to prosecute for any such penalty, for thirty days after such complaint shall have been made, the com- plainant may prosecute therefor in the name of the town, upon indemnifying the town for the costs and expenses of such prosecu- tion, in such manner as the supervisor may approve. If the com- missioners shall neglect or refuse to prosecute for any such penalty, knowing that the same has been incurred, he shall be liable to a penalty of ten dollars for every such neglect or refusal, to be recovered by action, in the name of the town, brought by the supervisor, or by any taxpayer of the town who may indemnify the town, for the costs and expenses of the action, in such manner as the supervisor may approve. Kevised from 1 K. S., ch. 16, tit. 1, art. 1, §§16-18. For penalties against overseers, see § 22, ante. For recovery of penalties generally, see § 164, post. For list of penalties prescribed by this chapter, see index, subject, " Penalties." Form of complaint to commissioner. No. 37, post. § 24. Compensation of overseers. — If any overseer shall be employed more days in executing the several duties enjoined upon him' by this chapter, than he is assessed to work on the highways, he shall be paid for the excess, at the rate of twelve and a half cents per hour for each day, and be allowed to retain the same out of the money which may come into his hands under this chapter; but he shall not be permitted to commute for the days he is assessed, nor be entitled to receive any greater sum as compensation, pursu- 4G The Highway Law. ant to this section, than the amount of money in his hands applic- able thereto. Eevised from 1 K. S., ch. 16, tit. 1, art. 1, § 13; L. 1880, ch. 308, § 1; amd. L. 1899, ch. 78. § 25. Division of town into highway commissioner districts.— "When a town has determined upon having two or three commis- sioners of highways, the town board may at a regular or special meeting thereof divide the town into two or three highway com- missioner districts as the case may be, and assign one of such dis- tricts to each commissioner of highways. Notice of such division, containing a brief and accurate description of the boundaries of each district and the name of the commissioner assigned thereto, shall be published once a week for two successive weeks in a news- paper published in such town, or if no newspaper be published therein, such notice shall be posted in at least six conspicuous places in such town. After a town is divided, the commissioners shall be elected or appointed, so that at all times one commissioner shall reside in each district. Aflded by L. 1898, ch. 127, § 1; amd. L. 1903, ch. 57, § 3, in effect March 19, 1903. Po%¥ers of one and three commissioners, § 3, and notes, ante. Powers of commissioners generally, § 4, ante. For form of description of a highway district under this section, see No. 38, post. § 26. Duties of commissioner in each district.— When a town is so divided, the commissioner shall apportion to each dis- trict the moneys raised and collected from the town at large for highway purposes and the commissioner assigned to or residing in a district shall expend the money so apportioned to his district upon the highways and bridges situated in or upon the borders thereof. Each commissioner shall cause the highways and bridges in his district to be kept in repair, and shall perform all the duties relating thereto, which the commissioners of highways of the town, except for such division, would perform. His powers and duties as to supervision, repair, construction and improvements of the highways and bridges within his district shall be exclusive. \ The Highway Law. 47 As to all otW powers and duties he shall act in conjunction \ntla. the other commissioners. Added by L. 1898, ch. 127, § 1. Powers of one and three commissioners, § 3, ante. General powers of commissioners, § 4, ante. AKTIOLE II. Assessment foe Highway Labok. Section 30. Meetings of eommissioners. 31. Lists of inhabitants. 32. Non-resident lands. 33. Assessments of highway labor, how made. 34. Copies of lists delivered to overseers. 35. Names omitted. 36. Appeals by non-residents. 37. Credit on private roads. 38. Certain assessments to be separate. 39. Tenant to deduct assessment. 40. Reassessment in case of neglect. 41. Omissions of assessors corrected. 42. New assessments by overseers. 43. Sidewalks and trees. 44. Abatement of tax for shade trees. 45. Sidewalk tax anticipated. 46. Certificate of anticipation. 47. Transfer of certificate. 48. Abatement of tax for watering trough. 49. System of taxation defined. 50. Town may change its system. 51. Vote thereon. 52. When change to take effect. 53. Annual tax under money system. Certain villages exempt therefrom. 53a. Duty of highway commissioners in certain towns. 53b. State to share expense of maintaining certain county roads. 54. Adoption of county road system. 65. County engineer. 56. Apportionment of expenditures for county roads. 57. Bonding county for county roads. 68. Jurisdiction of county roads. Money system to prevail in towns of a county adopting county road system. 59a. Proceeds of county bonds; use of surplus. § 30. Meetings of commissioners. — The commissioners of highways of each town shall meet within eighteen days after the 48 The Highway Laav. annual town meeting, at the town clerk's office, on gach day as they shall agree upon, and afterwards at such other times and places as they shall think proper. Eevised from 1 E. S., ch. 16, tit. 1, art. 2, § 20. As to the time of holding town meetings, see Town Law, § 10, et seq. § 31. Lists of inhabitants. — Each of the overseers of high- ways shall deliver to the clerk of the town, within sixteen days after his appointment, a list suhscribed by him, of the names of all the inhabitants in his highway district, who are liable to work on the highways; and the town clerk shall deliver such lists to the commissioners of highways. Revised from 1 K. S., ch. 16, tit. 1, art. 2, §§ 21, 23. As to exemption.s from highway labor, see § 33, subd. 2, and notes, post. For form of list required by this section, see No. 39, post. An overseer's failure to deliver to the town clerk a list of inhabitants liable to assessments for highway labor does not deprive the commis- sioner of power to assess the labor against the persons liable. Kinehart V. Young, 2 Lans., 354. § 32. Non-resident lands.— The commissioners of highways in each town, before making the assessment of highway labor, shall make out a list and statement, of the contents of all unoccu- pied lots, pieces or parcels of land within the town, owned by non- residents; every lot so designated, shall be described in the same manner as is required from assessors, and its value shall be set down opposite to the description; such value shall be the same as was affixed to the lot in the last assessment-roll of the town; and if such lot was not separately valued in such roll, then in proportion to the valuation which shall have been affixed to the whole tract, of w-hich such lot shall be a part Revised from 1 E. S., ch. 16, tit. 1, art. 2, § 22; and L. 1835, ch. 154, §§ 1, 2; L. 1832, ch. 107, § 1. For form of list of non-resident lands, see No. 40, post. Highway taxes on lands of non-residents are not assessed, put on the rolls, valued or verified by the assessors. Colman v. Shattuck, 2 Hun, 497; 5 Thomp. & Cook, 34; affd., 62 N. Y., 348; see Fowler v. Westervelt, 17 Abb. Pr., 59; 40 Barb., 374. The Highway Law. 49 As to assessTnent of non-resident of lands, generally, see Ensign et al. V. Barse et al,, 107 N. Y., 329; Chamberlain v. Taylor, 36 Hun, 24; Hampton v. Hanjsher, 46 Hun, 144; 124 N. Y., 634, in notes to § 33, post. § 33. Assessments of highway labor, how made,— The com- missioners of highways shall, at their first or some subsequent meeting, ascertain, assess and apportion the highway labor to be performed in their town, in the then ensuing year, as follows : 1. The whole number of days work to be assessed in each year, shall be ascertained, and shall be at least three times the number of taxable inhabitants in the town. 2. Every male inhabitant being abpvo the age of twenty-one years excepting all honorably discharged soldiers and sailors who lost an arm or a leg in the military or naval service of the United States, or who are unable to perform manual labor by reason of injuries received, or disabilities incurred in such service, members of any fire company formed or created pursuant to any statute and situated within such town, persons seventy years of age, clergymen and priests of every denomination, paupers, idiots and lunatics shall be assessed at least one day. 3. The residue of such days work, shall be apportioned and assessed upon the estate, real and personal, of every inhabitant of the town, including corporations liable to taxation therein, as the same shall appear by the last assessment-roll' of the town, and upon each tract or parcel of land owned by non-residents of the town contained in the list made by the commissioners, excepting such as are occupied by an inhabitant of the town, which shall be assessed to the occupant. The assessment of labor for personal property, must be in the district in which the owner resides, and real property in the district where it is situated, except that the assessment of labor upon the property of corporations, may be in any district or districts of the town, and such labor may be worked out or commuted for, as if the corporation were an inhabitant of the district; but the real property within an incorporated village or city, exempted from the jurisdiction of the commissioners of highways of the town and personal property of an inhabitant thereof, shall not be assessed for highway labor by the commis- sioners of highways of the town. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the commissioners of highways shall assess the same, and apportion the highway labor as above provided. 4. The commissioners shall aifix to the name of each person named in the lists furnished by the overseers, and of assessable corporations, and to the description of each tract or parcel of land 4 60 Tjte Highway Law. contained in the list prepared by them of non-resident lands, the number of days which such person or tract shall be assessed for highway labor as herein directed, and the commissioners shall sub- scribe such lists, and file them with the town clerk. 5. If the commissioners of highways shall neglect for one year, after any highway shall have been laid out, and title thereto acquired, to open or work the same, or any part thereof, and any inhabitant or corporation of the town, in or through which the high- way runs, shall give ten days notice to the commissioners of the town, that they desire to apply the whole or any part of their high- way labor to the working of such highway, the commissioners shall assign such inhabitants and. corporations to such highway district, direct the highway labor for which they are annually assessed to be applied to the same, and cause the same to be worked and put in good order for vehicles and travelers within one year, under the direction of any of such inhabitants, whom s\ich commissioners may appoint as an overseer of the labor so to be applied to such highway; and when the number of days labor assessed in the current year to such inhabitants, as the annual highway tax, is not sufEcient to put such liighway in good order, the inhabitants and corporations may anticipate the whole or any part of the high- way labor assessed, and to be assessed against them, for a period not exceeding three years, but from no one of the districts of the town shall more than one-half of its annual labor be taxed and applied to any highway not embraced in such district. Revised from 1 I!. S., ch. 16, tit. 1, art. 2, §§ 19, 22-24; L. 1835, ch. 154, § 3; L. 1837, ch. 431, § 1; L. 1886, ch. 422; subd. 2, arnd. L. 1898, ch. 353 and L. 1903, ch. 172, in effect April 14, 1903. Overseers to furnish lists of all persons liable to work on roads, § 31, ante. Names omitted by assessors may be added to the lists, § 41, post. "Where a tovcn contains a city or a village which is a separate highway district, and contains lands lying partly in the town and partly in such city or village, the part in the town must be valued separately and that part only can be assessed for highway labor. L. 1871, ch. 171. For separation of personal highway tax and property highway tax in certain cases, see § 38, post. Performance of highway labor generally, §§ 60-74, post. Exemption of ofBcers, attendants, etc., of State asylums from high- way labor. L. 1862, ch. 220, § 10. Assigning abutters to work plank roads or turnpikes. Trans. Corp. L., § 150. For form of assessment required by this section, see No. 41, post. Form of notice of desire to work upon road under this section. No. 42, post. Overseer's road warrant. No. 43, post. The Highway Law. 51 No provision is made in subdivision 5 of this section for giving- those who perform labor certificates of anticipation, but they should be given in order to avoid confusion. For form of such certificate, see No. 50, A highway assessment is not invalid because no number of the road district is given, nor because of the omission of the date of tlie' com- missioner's warrant. Ensign et al. v. Barse et al., 107 N. Y., 329. That aliens may be assessed for highway labor, see Attorneys' General Opinions (1796-1872), p. 570. Under the statute the commissioner of highways must assess the residue of highway labor as directed, and they have no discretionary power to make corrections in the roll of the preceding year, which they are directed to follow. Hampton v. Hamsher, 46 Hun, 144; affd., 124 N. Y., 634; Trustees of the Village of Angelica v. Morse, 56 Barb., 380 See, also. The People v. Pierce, 31 Barb., 138. And this is so, even though the roll includes or excludes lands lying partly in one and partly in another town, and the commissioners are not liable for the days' labor erroneously assessed against and performed by a, person, where he follows the roll, even though the assessment is erroneous. Hampton v. Hamsher, supra. It was held under the former statute that a corporation could be com- pelled to work out its road tax in any district in the town, regardless of the district in which its property was situated. N. Y., Lake Erie and Western E. Co. v. Supervisors of Delaware Co., 67 How. Pr., 5. And such is now the specific provision of the statute. The commissioners are required to estimate the whole number of days' work required. Chamberlain v. Taylor, 36 Hun, 24. § 34. Copies of list delivered to overseers. — The commis- sioners of highways shall direct the clerk of the town to make copies of such lists, and shall subscribe such copies, after whick they shall cause the several copies to be delivered to the respective overseers of highways of the several districts in which the highway labor is assessed, and the acceptance of the list by any overseer to whom the same may be delivered, shall be deemed conclusive evi- dence of his acceptance' of the office of overseer. Eevised from 1 E. S., ch. 16, tit. 1, art. 2, § 25; L. 1863, eh. 444. Contents of lists delivered to overseers, §§ 31, 33, ante. § 35. Names omitted. — The names of persons or corporations omitted from any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be assessed by the overseers in proportion to their real and personal estate to work on the highways as others assessed by the commis- sioners on such lists, subject to an appeal to the commissioners of highways. 52 The Highway Law. Revised from 1 E. S., eh. 16, tit. 1, art. 2, § 26. One who removes from one district to another in the same toven is not a new inhabitant, but he may be regarded as a person whose name has been omitted from the list when he owns land in the district to which he removes and has not been assessed for it in the district from which he came. Eiuehart v. Young, 2 Lans., 354. § 36. Appeals by non-residents. — Whenever any non-resident owner of unoccupied lands shall conceive himself aggrieved by any assessment of any commissioner of highways, such owner, or his agent, may, within thirty days after such assessment, appeal to the county judge of the county in which such land is situated, who shall, within twenty days thereafter, hear and decide such appeal, the owner or agent giving notice to the commissioners of highways of the time of the hearing before the judge, and his decision there- upon shall be final and conclusive. Revised from 1 E. S., ch. 16, tit. 1, art. 2, §§ 27, 28. Method of assessment of non-residents, §§ 32, 33, subds. 3, 4, ante. Assessment of persons omitted by town assessors, § 41, post. Forms of notice and appeal under this section, Nos. 44, 45, post. § 37. Credit on private roads. — The commissioners of high- ways of each town shall credit to such persons as live on private roads and work the same, so much on account of their assessments as the commissioners may deem necessary to work such private road, or shall annex the private roads to some of the highway districts. Eevised from 1 K. S., ch. 16, tit. 1, art. 2, § 29. Creation of highway districts and assignment of highway labor, S 4, subds. 3, 4, ante. Performance of highway labor generally, §§ 60-74, post. Private roads generally, §§ 106-123, post. Duty to credit labor on private roads, etc. Matter of Freeholders of Montezuma, 38 N. Y. S. K., 970; s. c, 14 N. Y. Supp., 845. § 38. Certain assessments to be separate.— Whenever the commissioners of highways shaU assess the occupant, for any land not owned by such occupant, they shall distinguish in their assess- ment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof; but when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year to work on the highways, on account of the same land. Revised from 1 E. S., ch. 16, tit. 1, art. 2, § 30. The Highway Law. 53 Assessment of highway labor, §§ 31, 33, ante. For form of assessment lists, see No. 41, post. § 39. Tenant to deduct assessment.— Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the highways for such land, and shall actually perform such work, or commute therefor, he shall be entitled to a deduc- tion from the rent due, or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord. Revised from 1 E. S., ch. 16, tit. 1, art. 2, § 31. For division of assessments showing what part is against the person and what part is against the jjroperty, see § 38, ante. This section entitles a tenant to deduct for performance of highway labor assessed against land only and not for labor assessed against him personally. § 40. Reassessment in case of neglect.— If it shall appear from the annual return of any overseer of highways, that any person or corporation who was assessed to work on the highways (other than non-residents), has neglected to work the whole number of days assessed, and has not commuted for, or otherwise satisfied such deficiency, the commissioners of highways shall reassess the deficiency to the person so delinquent, at the next assessment for work for highway purposes, and add it to his annual assessment; such reassessment shall not exonerate any overseer of highways from any penalty which he may have incurred under the provisions of this chapter. Eevised from L. 1832, ch. 107, §§ 2, 3. Assessment lists, generally, §§ 31-33, ante. Form of assessment list, No. 41, post. § 41. Omissions of assessors corrected.— Whenever the assessors of any town shall have omitted to assess any inhabitant or property in their town, the commissioners of highways shall assess the persons and property so omitted, and shall apportion highway labor upon such persons or property, in the same manner as if they had been duly assessed upon the last assessment-roll. Revised from L. 1837, ch. 431, § 6. § 42. New assessments by overseers. — When the quantity of labor assessed on the inhabitants of any district by the commis- sioners of highways, shall be deemed insufficient by the overseer of the district to keep the highways therein in repair, such overseer shall make another assessment on the actual residents of the 54 The Highway Law. district, in the same proportion, as near as may be, and not exceed- ing one-third of the number of days assessed in the same year by the commissioners, on the inhabitants of the district; and the labor so assessed by an overseer, shall be performed or commuted for in like manner, as if the same had been assessed by commissioners of highways. Eevised from 1 R. S., ah. 16, tit. 1, art. 1, § S. Form of assessment by overseers under this section, Ko. 46, post. New assessments may be made by overseers who are appointed by trus- tees of villages who are made commissioners of highways with power to appoint such overseers, who are to have same powers as overseers in towns. Weed v. Village of Ballstou Spa, 76 N. Y., 329. See Farman v. Town of Ellington, 46 Hun, 41; affd., 124 N. Y., 662. § 43. Sidewalks and trees. — The commissioners of highways may, by an order in writing duly certified by a majority of them, authorize the owners of property adjoining the highways, at their own expense, to locate and plant trees, and locate and construct sidewalks along the highways in conformity with the topography thereof, which order, with a map or diagram showing the location of the sidewalk and tree planting, certified by the commissioners, shall be filed in the office of the clerk of the town where the high- way is located, within ten days after the making of the order. (K. S., p. 1400, post, p. 917.)* Revised from L. 1S81, ch. 233; L. 1860, ch. 61, § 1; L. 1863, ch. 93; L. 1874, ch. 570, § 1; L. 1876, ch. 340, § 1; 1 K. S., ch. 16, tit. 1, art. 7, § 127. Abatement of taxes for shade trees, § 44, post. Fallen trees in highways, §§ 102, 103, post. Trees belonging to the abutter, generally, § 156, and notes, post. Form of order under this section. No. 47, post. Penalty for injuring trees along' the highway, or around school, or church, or public building, L. ISSl, ch. 344; Penal Code, § 639, subd. 5; § 640, subds. 1, 2, 3. Trees may be planted in the highway where the fee is in the munici- pality, if the consent of the municipal authorities is obtained and proof that the tree has stood in the highway for over a 3'ear, is prima facie evidence of municipal sanction. Lane v. Lamke, 53 App. Div., 395. -An abutter on a country road may set out trees along the roadside, and may cultivate or use the roadside in any way to improve or beautify his property, if he does not impair the public easement of passage. Palmer >. Larchmont Electric Co., 6 App. Div., 12; revd. on other points, 15S N. Y., 231. Sidewalks are part of the highway, and in the absence of statute or contract the abutter is not charged with their care and is not liable • So in the original. The Highway Law. 55 -toT injuries caused by their defects. Law v. Kingsley, 82 Hun, 76; Village of Fulton V. Tucker, 3 Hun, 529; see, also, Clapper v. Town of Waterford, 131 N. Y., 382. Setting out trees or building a sidewalk within the bounds of a highway as authorized by statute will not found a claim of adverse possession. Bliss v. Johnson et al., 94 N. Y., 235. § 44. Abatement of tax for shade trees. — Any inhabitant liable to highway tax, who shall hereafter, pursuant to such an order, transplant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or any nut bearing trees, suitable for shade trees, shall be allowed by the overseers of highways, or other oificer having charge of the highway, in abatement of his highway tax, one dollar for every four trees set out; but all trees must have been set out the year previous to such allowance, and be living and well protected from animals at the time of the allow- ance, and not further than eight feet from the outside line of any highway three rods wide, and not more than one additional foot further therefrom, for each additional rod in width of highway, and not less than seventy feet apart, on the same side of the highway, if elms, or fifty feet, if other trees; trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same manner. Such abatement of highway tax to any person, shall not exceed one-quarter of his annual highway tax in any one year; but such abatement shall be allowed by the over- seers of highways, or other oiEcers having charge of the highway, annually, until it shall have equalled the whole number of trees set out, at the rate herein specified. Eevised from L. 1883, ch. 371. Trees in highway generally, § 43, ante; § 154, post. Fallen trees in highways, §§ 102, 103, post. Abatement of taxes for watering troughs, § 48, post. Abatement of taxes for removal of fences, § 72, post. Abatement of taxes for street lamps, § 73, post. Abatement of taxes for using wide-tire wagons, § 74, post. The State not only invites the abutter on a highway to plant trees, but encourages him to do so by granting to those who do a substantial reduction in their road tax. Palmer v. Larchmont Electric Co., 6 App. Div., 12; revd. on other points, 158 N. Y., 231. § 45. Sidewalk tax anticipated in towns under labor sys- tem; sidewalks in towns under money syistem. — The commis- sioners of highways of any town, may, upon the written application of a majority of the inhabitants in any highway district, subject to assessment for highway labor therein, authorize not more than one- quarter of the highway labor of the district, or of the commutation 56 The Highway Law. money recei-^-ed tlievefor, to be expended under the direetion of the overseer of highAvays of the district, in the constnietion, repairs and improvement of any sidewalk within the limits of the district, and may by writing signed by them, filed with the town clerk, author- ize not more than one-fourth of the highway labor of the district, to be anticipated for not more than three years, for constructing, improving or repairing any such sidewalk; and thereupon any per- son or corporation, assessed for highway labor in the district, may, for such purpose, anticipate his or its assessment for highway labor for the term prescribed by the commissioners, and may perform such labor, under the direction of the overseer within such time, or commute therefor. The commissioner of highways of any town which has adopted the money system of taxation for improving its highways may with the consent of the town board, expend abor- tion of the money raised for the maintenance of its highways in maintaining and repairing existing sidewalks in such town. The town board of any such toAvn may on the j)etition of not less than twenty-five taxpayers of the toAAm, by resolution, direct the com- missioner of highways to construct a sidewalk along a described portion of any highway of the town, in a manner and not exceed- ing an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a tovvm charge, and assessed and levied in the same manner as money raised for the maintenance of highways in such town. Revised from L. 1S80, ch. 305, § 1; L. 1884, ch. 479; amd. L, 1904, ch. 688, § 1; in effect May 9, 1904. Anticipation of highway taxes to open new road, § 33, subd. 5, ante. Sidewalks along highways generally, § 43, ante. See forms Nos. 48, 49, post. § 46. Certificate of anticipation. — The overseer shall give to such person or corporation, upon the performance of such labor or commutation therefor, a certificate signed by him, showing the number of days labor so anticipated and worked, or commuted for by such person or corporation; and in each succeeding year, upon presentation of such certificate, the person or corporation shall be credited and allowed by the overseer of highways, with the per- formance of the number of days labor assessed for such year, until the credit shall equal the number of days stated in the certificate to have been anticipated, and shall indorse thereon a statement signed by him showing the credit and allowance. Revised from L. 1880, ch. 305, § 2. For form of certificate of anticipation and transfer of same as provided by next section, see Nos. 50, 51, post. § 47. Transfer of certificate.— Such certificate may be trans- ferred to any grantee, upon the voluntary grant of the real prop- The Highway Law. 57 ©rty upon which such highway labor is assessable, and if such real property is transferred otherwise than by voluntary grant, it shall be deemed to have been transferred to the person succeeding thereto, and in the hands of any such transferee, it shall have the same effect as when held by the original owner. Revised from L. 1S80, eh. 305, § 3. For form of transfer under this section, see No. 51, post. § 48. Abatement of tax for watering trough.— The commis- sioners of highways shall annually abate three dollars from the highway tax of any inhabitant of a highway district, who shall construct on his own land therein, and keep in repair a watering trough beside the public highway, well supplied with fresh water, the surface of which shall be two or more feet above the level of the ground, and easily accessible for horses with vehicles; but the number of such watering troughs in the district, and their location, shall be designated by the commissioners. In a town in which the highways are worked or repaired by the money system of taxation, the commissioners of highways shall annually issue to each person to whom such an abatement is allowed, a certificate specifying the amount thereof. Eevised from L. 1869, eh. 131, § 1, and L. 1873, ch, 274, § 1; amd. L. 1897, ch. 237. Abatements in towns wliere money system of taxation prevails are town charges, Town Law, § 180, subd. 8. For list of abatements of taxes upon various g-rounds, see notes to § 44, ante. Commissioners of highwaj's may designate places for watering troughs along plank-roads and turnpikes, and any inhabitant maintaining one at the point designated, and in the manner prescribed by the statute is entitled to an annual abatement of three dollars from tolls, and the com- pany is subject to a penalty of twenty dollars for a refusal to allow such ■abatement, L. 1869, ch. 131, as amended by L. 1872, ch. 274. § 49. System of taxation defined. — The system of taxation for working and repairing highways, as hereinbefore provided, shall be known as " The Labor System of Taxation," and the system hereinafter provided, shall be known as " The Money System of Taxation." New. Cited, Patchen v. Town of Walton, 17 App. Div., 158, 161. § 50. Town may change its system. — Any town may change its system of taxation for working and repairing its highways, by complying with the following provisions relating thereto. Revised from L. 1873, ch. 395, § 1. 58 The Highway Law. § 51. Vote thereon. — Upon the written request of twenty-five taxpayers of any town, the electors thereof may, at a special or biennial town meeting vote by ballot upon the question of changing the system of taxation for working the highway; but no person refciding in an incorporated village or city, exempted from the jurisdiction of commissioners of highways of the town, shall sign such request, or vote upon such question. Eevised from L. 1873, ch. 395, § 2; amd. L. 1895, ch. 386; L. 1900, ch. 25. Form of request, No. 52, post. § 52. When change to take effect. — When a town shall have voted to change the system of taxation for working and repairing the highways, as herein provided, such change, except in so far as it affects the duties of the town assessors in indicating and placing 0)1 the assessment-roll the property and persons subject to assess- ment and taxation for the repair of highways and of the highway commissioners . and town board in determining and certifying the amount of such tax, shall not take effect until the next annual mec!ting of the board of supervisors, after the town meeting at which it was decided to make the change; and until such annual mooting of the board of supervisors the former system of repairing highways and of taxation therefor shall remain in force in said town; provided, however, that when such change shall have been voiei at a town meeting held subsequent to the first day of July in any year, it shall not take effect, except as to the duties required to b? perfonned by the town officers specified herein, until the second annual meeting of the board of supervisors next succeeding such town meeting. In each town of Westchester county such change shall be for a term of not less than five years. Revised from L. 1873, ch. 395, § 10; L. 1888, ch. 240; amd. L. 1895, ch.. 386; L. 1901, ch. 150. Chapter 60 of the Laws of 1901 provides that in an3' town which voted on November 6, 1900, to change to the money system of taxation, and in which town tlie inability or failure of the assessors or supervisors has made it impossible to adopt the change, then such change shall take effect upon the next meeting of the board of supervisors after the passage of said act. § r,?,. [Annual tax under money system; certain villages exempt therefrom. — ] Any town voting in favor of the money system shall annually raise by tax, to be levied and collected the same as other town taxes, for the repair of the highways, an annual sum of money, which shall be equal to at least one-half the value at the commutation rates, of the highway labor which should be assessable under the labor system, but in any towa in which there The Highway Law. 59 may be an incorporated village, which forms a separate road dis- trict, and wherein the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of such tax for the repair of highways of such town; and the assessors of such town are hereby required to indicate on the assessment roll the property included in such incorporated village, in a column separate from that con- taining a list of the property in the town not included in such village, and shall also place on the assessment roll the names of all persons liable to poll tax who are not residents of such village, and the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated; but this act shall not apply to assessments made for damages and charges for laying out or altering any road, or for removing any obstruction caused by snow or preventing any such obstruction, or for erecting or repairing any bridge in such town. The amount of such tax shall be determined by the commissioners of highway* and the town board, who shall certify the same to the board of supervisors, the same as any other town charge. The clerk of the board of supervisors of each county containing a town which has voted for the money system, shall on or before the first day of January of each year transmit to the state eomptroUer a statement certified by him, and signed and verified ty the chairman of such board, stating the name of each town so voting, and the amount of money tax levied therein for the repair of highways during the preceding year. The comptroller shall ■draw his warrant upon the state treasurer in favor of the treasurer of the county in which such town is situated, for an amount equal to fifty per centum of the amount so leA'ied in each town. The county treasurer shall pay the amount so paid to him on account of the money tax levied in any such town to the supervisor of the tovra, to be used for the repair and permanent improvement of such highways therein. The sum paid by the state to any tovra. except to towns the assessed value of whose real and personal prop- erty is less tlinii one million dollars by virtue of this section shall not exceed, in any one year, one-tenth of one per centum of the taxable property of such town. All moneys collected for the repair and construction of highways in any town under this section and all moneys received from the state as provided herein, shall be paid to the supervisor of the town, who shall be the custodian thereof and shall be accountable therefor. Before receiving any such moneys the supervisor shall give an undertaking to the town in an amount and with such sureties as shall be approved by the tovra board, conditioned for the faithful disbursement, safe keeping and accounting for the moneys that may come into his hands under *So ill the original. 60 The Highway Law. this section. Such undertaking shall be filed in the office of the town clerk. The moneys collected and received under this section shall be paid out liy the super^'isor u]X)ii the order of the highway eomiiiissioncr for the repair and permanent improA'ement of the high\vays of the touai, in such manner as the com.missioner of high- ways and the town board may detennine and direct. Revised from L. lS7a, ch. 395, §§ 3, 4; L. 1874, ch. 169; L. 1S89, cli. 259, §§ 1, 2; amd. L. 1893, ch. 412; L. 1898, ch. 351; L. 1902, ch. 156; L. 1903, ch. 228; L. 1904, ch. 183, § 1; L. 1904, ch. 478, § 4; in effect April 28, 1904. Duty of the commissioner to file contracts for highway labor, etc., L. 1895, ch. 717, page 202, post. Villages form separate road districts. General Village Law (L. 1897, ch. 414), § 141. By the amendment of 1893 villages are exempt in certain cases from taxes imposed for the repair and maintenance of highways outside their limits, but they are not exempt from charges for laying out or altering highways or erecting or repairing bridges. Matter of Shapter v. Carroll, 18 App. Div., 390. § 53-a. Duty of highway commissioners in certain towns.— In towns where the money system of taxation has been adopted for working highways, it shall be the duty of each owner of lands and occupant of lands owned by nonresidents, situated along a highway, to cut the noxious weeds and brush growing within the bounds of the highway fronting such lands at least twice in each year, once before the first day of July and again before the first day of September, and also to remove all fences, brush, shrubbery or other obstruction causing the drifting of snow upon said high- way before the first day of Xovember in each year. If the owner or occupant fails to cut such weeds or brush and remove such fences, brush, shrubbery or other oljstraction causing the drifting of snow as provided in this section, the commissioner of high- ways of the town in which such lands are situated shall cause the same to be done, and shall gi\c such owner notice in writing sen-ed personally or by mailing to his post office address, if the commissioner can with due diligence ascertain the same, stating that at a specified time and place the commissioner will assess the cost thereof against such owner so neglecting, and return the same to the town board of his town at the meeting held on the Thursday next preceding the annual meeting of the board of supervisors, stating the name of each owner, and the amount assessed against him. The time so fixed shall not be less than eight days after the personal service or the mailing of such notice. The town board shall certify the amount of the assessment made by the highway commissioner to the board of supervisors. The board of super- The Highway Law. 61 visors shall cause tlie amotLut so rettirned to tliem by the town board to be levied against such delinquent owner and added to his highway tax for the next ensuing year. Added L. 1900, ch. 516, see § 70, post; amd. L. 1903, ch. 136; L. 1904, ch. 478, § 5; in effect April 28, 1904. Form of notice, No. 53, post. § 53b. State to share expense of maintaining certain county roads. — Whenever any county has heretofore constructed, in pur- suance of this chapter, or of any other general or special law, a county road or roads, without expense to the state, the state shall be liable to annually contribute toward the expense of maintaining such road or roads fifty per centum of the amount appropriated by such county for the maintenance of such road or roads during the preceding year. The clerk of the board of supervisors of a county entitled to a contribution from the state toward the maintenance of its roads under this section shall annually, on or before the first day of January, transmit to the state comptroller a statement certified by him and signed and verified by the chairman of such board, stating the amount appropriated by the board of supervisors of such county for the maintenance of such county road or roads dur- ing the preceding year. The comptroller shall draw his Avarrant upon the state treasurer in favor of the treasurer of such county, for an amount equal to fifty per centum of the amount so appro- priated. Such money shall be applicable to the repair and perma- nent improvement of such county road or roads, and shall be expended in the same manner as money appropriated by the county for such purpose. The sum paid by the state to any county by virtue of this section shall not exceed in any one year, one-tenth of one per centum of the taxable property of such county. Added L. 1903, ch. 269, in effect April 24, 1903. § 54. Adoption of county road system.— The board of super- visors of any county may, by a vote of a majority of the members thereof, by resolution, adopt the county road system, and shall as soon as practicable after the adoption of such resolution, cause to be designated as county roads, such portions of the public highways in such county as they shall deiem advisable, outside of the limits of any city in such county, and shall cause such designation and a map of such county roads to be filed in the clerk's ofiice of such county; the roads so designated shall, so far as practicable, be lead- ing market roads in such county. Added L. 1893, ch. 333; amd. L. 1805, ch. 375. For another scheme of county supervision of highways, see §§ 180-189, post; also, L. 1890, ch. 555, explained below in notes to this section. 62 The Highway Law. Added L. 1893, ch. 333; amd. L. 1895, ch. 375. General powers of board of supervisors over highwai'S, County Law, §§ 60-80, pag-es 169-178, post. Cited in Board of Supervisors v. Phipps, 28 App. Div., 521, and Gaedeke V. Staten Island Midland K. 1!. Co., 43 App. Div., 514. That this and the following- sections upon this subject may properly be held to apply to counties of over 200 square miles in area, and that all of lesser area are governed by ch. 555 of L. of 1890, see Gaedeke v. Staten Island Midland E. li. Co., 46 App. Div., 219. § 55. County engineer. — The board of supervisors of any comity may ajipoint a comity engineer who shall he renio\"ahle at its pleasure. The term of office of each county engineer so appointed shall be three years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge. The eonnty engineer shall visit and examine tlie highways in each town of the county and advise and direct the commissioners of highways how to best repair, maintain and improve the same. After such examination the county engineer shall establish such grades and indicate such means of drainage, repairs and improve- ments as seems* U> him to be necessary. The county engineer shall forward to the state engineer and surveyor and to the clerk of the board of supervisors of the county at such times as shall be fixed by the state engineer and surveyor his report of the conditions of tlie highways in each town of the county. He shall carefully inspect the highways in the county which have been improved pur- suant to the provisions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and shall furnish a detailed report showing the required repairs and the estimated cost thereof to the state engineer and surveyor at such tiiaes as shall be fixed by the state engineer and surveyor. The work of repairing, imi)roving or erecting bridges in any town of such county shall be done under the general supervision of the county engineer pursuant to plans prepared or approved by him. A county superintendent of highways may be appointed in any county by the board of supeiwisors instead of a county engineer and when so appointed, he shall have all the poAvers and perform all the duties herein prescribed for a coimty engineer. Added L. 1893, ch. 333; amd. L. 1901, ch. 239; L. 1902, ch. 52; L. 1904, ch. 609, § 2; in effect May 6, 1904. See §§ 181, 182, post. Add §§ 55a, b, c, d. S r).Va. [Classification of higllWayS.J— The board of super- visors' of any county may cause the highways of the countv to be * So in the original. The Highway Law. 63 surveyed and designated upon a map in two classes: First, those ■vvhicli have been improved under lie provisions of chapter one hundred and fifteen of tiie laws of eighteen hundred and ninety- eight, and the acts amendatory thereof, or are deemed to be of sufficient public importance to come within the purposes of that chapter ; second, all other highways of the county which may how- ever be further classified by such board of supervisors if deemed of sufficiently different degrees of relative importance for common trai£c and travel. Such survey and map shall be made by the county engineer, if there be one, and copies thereof shall be filed in the office of the state engineer and surveyor, the county clerk of the county, and of each toAvn clerk thereof. Resurveys and amended maps may be similarly made and filed. Added L. 1904, ch. 609, § 1; in efEect May 6, 1904. § 55-b. [Maintenance of improved highways.]— All high- ways which have been, or shall hereafter be improved pursuant to the provisions of such chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, shall be maintained by Uie commissioners of highways of the town or towns, where the same are located in accordance with such directions as shall bo given for such maintenance by the state engineer and surveyor and such plans, specifications, rules and regulations in addition tlieveto as may be prescribed therefor by the county engineer, if there be one, -and approved by the state engineer and surveyor; so fur as prac- ticable, such improved liighways shall be maintained by contract. If any of the commissioners of highways shall fail or nei^'lect to properly pro^'ide for the care and maintenance of such improved highways within such time and in such manner as may be pre- scribed, the county engineer, if there be one, may cause t]:e same to be performed and the expense thereof shall be ])aid by the county treasurer out of any funds in his possession not otherwise appropriated, upon whom such county engineer shall muke a draft therefor and the amount thereof shall be included by the board of supervisors of such county in its next annual tax lew as a coiinty charge, unless the same be apportioned upon the town oi' towns ■vA'hich such board deems benefited thereby, in which case it shall be included in the tax so levied upon the town or towns to which it shall be apportioned. . aSTothing herein shall be deemed to limit the powers of the state engineer or surveyor over any such roads. The board of supervisors of any county, may, by a resolution duly passed, determine that the maintenance of such improved high- ways or any other highways within the county shall be under the sole control and care of the county engineer, subject to the rules and regulations of the state engineer and surveyor, and upon the adoption of such plan by the board of supervisors, the expense of 64 The Highway Law. said maintenance shall be paid by the county treasurer upon the draft of the eounty engineer tlierefor, and the same shall be levied as a county or town charge, as above provided. Added L. 1904, ch. 609, § 1; in effect May 6, 1904. § .i.i-e. [Compliance with directions of engineers and sur- veyor.] — Commissioners of highways in the several to^^^ls of this state, within which any highways have been improved, or may hereafter be improved pursuant to the provisions of such chapter one hundred and lifteen of the laws of eighteen hundred and ninety-eiglit, or which have adopted or may hereafter adopt the money system of highway taxes pursuant to sections fifty, fifty-one, fifty-two and fifty-three of the higliway hiw, shall comply A^ath the directions of the state engineer and sur\'cyor, and the plans, siiecifications, rules and regulations in addition thereto of the county engineer, if there be one, when approved by the state engineer and surveyor, for the repair and maintenance of the high- ways thereof, and the state engineer and surveyor may by notice to the comptroller, cause him to withhold from any town the moneys otherwise due from the state under said section fifty-three in which the highway commissioners shall have failed to comply with this section. Added L. 1904, ch. 609, § 1 ; in effect May 6, 1904. § 55-d. [Compelling appointment of county engineer.]— The state engineer and surveyor may also refuse to cause the iiiiprovement of any further highways pursuant to said chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, in any county until the board of supervisors of such county has duly appointed a county engineer, whenever he deems it necessary for the proper care and maintenance of such highways and may also in any county containing towns which have adopted the money system of highway taxes, in which county the whole moneys collected and received pursuant to said section fifty-three exceed ten thousand dollars, by notice to the comptroller cause him. to withhold from the t()\\'ns in such county which may have adopted such money system of highway taxes, the moneys otherwise due from the state under said section fifty-three until the board of supervisors of such counlv has duly appointed a county engineer, whenever he likewise deems it necessary for the proper repair and maintenance of the highways of the town. Added L. 1904, ch. 609, § 1; in effect May 6, 1904. § 56. [Apportionment of expenditures for county roads.]— The expense of improving, repairing and maintaining the county roads of each county, shall be a county charge, and in any county in which during the past five years there has been expended at least the sum of five thousand dollars for macadamizing purposes, the The Highway Law. 65 expense of constructing, improving, maintaining and repairing such county roads, sliall be annually apportioned by the board of super- visors of the county, upon the various towns and cities within the county, as the said board may deem just. The money necessary to improve, repair and maintain tlie county roads or to pay the principal and interest of any bonds issued as provided in the next section, shall be levied and collected at the same time and in the same manner as money for other county charges is levied and collected. The board of supervisors shall designate the amount of money to be expended upon each county road, and may make rules and regulations for the government of the county engineer and regulating the expenditure of such money. Added L. 1893, ch. 333. Amd. L. 1895, ch. 375. See § 53b, ante. Cited in Board of Supervisors v. Phipps, 28 App. Div., 521. § 57. [Bonding county for county roads.]— The board of super- visors of such county may borrow money from time to time for the construction, maintenance and repair of the county roads in such county, and except in cities and incorporated villages for the build- ing and maintenance of sidewalks at such places as the board may direct, provided, however, that wherever any property owner peti- tions the board for the building of a sidewalk in front of his premises, and such property owner shall pay one-half of the cost of said improvement, it shall be the duty of the board to build such sidewalk in such manner as such board may deem best ; and may issue the bonds or other evidences of indebtedness of the county therefor; but such bonds or other evidences of indebtedness shall not bear a rate of interest exceeding five per centum per annum, and shall not be for a longer term than twenty years, and shall not be sold for less than par. Added L. 1893, ch. 333; amd. L. 1904, ch. 646, § 1; in efEect May 39, 1904. The balance of moneys raised under this section, if any remain, may be used to repair other roads than the particular one in question. Board of Supervisors v. Phipps, 28 App. Div., 521, and see § 59a, post. And such unexpended balance may be used to defray the cost of the construction of a jail, and section 59a does not prevent this. Board of Supervisors v. Phipps, 35 App. Div., 350. § 58. [Jurisdiction of county roads. IVIoney system to prevail in town of a county adopting county road system.] — The county roads in any county shall be exclusively under the jurisdiction of the board of supervisors and the county engineer of the county, and exempt from the jurisdiction of the highway officer or officers performing the duty of highway commissioners of the several towns and villages in which such county roads are located. The system of taxation for working and repairing the highways other than the 5 66 The Highway Law. county roads in a town in a county in which the county road system is adopted, shall be the money system of taxation, provided, how- ever, that in the county of Queens, the system as now provided by special act shall be continued. Added L. 1893, ch. 333. Amd. L. 1895, eh. 375. Where, under section 91 of the Railroad Law, the consent of the com- jnissioners of highways is necessary to authorize the construction of a railroad on a highway, neither this section nor ch. 555, L. 1890, dispenses with the necessity of obtaining such consent, though the highway be a county road. Gaedeke v. Staten Island Midland K. R. Co., 43 App. Div., 514; 46 App. Div., 219. § 59a. [Proceeds of county bonds; use of surplus.] — If the proceeds of any county bonds issued for the construction of certain specified highways shall exceed the amount necessary for the construction of said highways, the board of supervisors may, in their discretion, apply such excess or any part thereof to the con- struction and improvement of other roads already adopted into the county road system; or to the maintenance of the roads for the construction of which said bonds were issued; or to the payment of interest or principal, or both, of said bonds. Added L. 1898, ch. 641, § 1. See Board of Supervisors v. Phipps, 35 App. Div., 350, notes to § 57, ante. AETICLE III. The Duties of Oveeseees of Highways, and the Peefoemance OF Highway Laboe. Section 60. Notice to work. 61. Notice to non-residents. 62. [Commutation.] 63. Teams and implements. 64. Substitutes. 65. Penalties for neglect to work or commute. 66. Assessments for unperformed labor. 67. Penalty for refusal of overseer to provide list. 68. Collection of arrearages for unperformed labor. 69. Annual return of overseers. 70. Noxious weeds in highway. 71. Overseers to notify occupant to remove weeds. 72. Abatement of tax for removal of fence. 73. Abatement of tax for street lamps. 74. Rebate of tax for using wagon tires of certain width. § 60. Notice to work. — Every overseer of highways shall give at least twenty-four hours notice to all residents of his dis- trict, and corporations assessed to work upon the highways therein, The Highway Law. 67 of tlie time and place at which they are to appear for that purpose, and with what teams and implements, and that they will be allowed at the rate of one day for every eight hours of work on the high- ways, between seven o'clock in the forenoon and six o'clock in the afternoon. The notice to corporations shall be served personally on an agent thereof residing in the town, if any, or if none, by filing the notice in the office of the town clerk, at least five days before the labor shall be required; and any number of days not exceeding fifty, may be required to be performed by any such corporation in any one day. Kevised from L. 1837, ch. 431, § 3; 1 E. S., ch. 16, tit. 1, art. 3, § 32, and L. 1876, ch. 348. Commissioners of highways must require overseers to warn residents to work, § 4, subd. 6, ante. Duty of overseer to give such warning, § 30, subd. 2, and note below. Penalty for failure to give such warning and collection thereof, § 22, subd. 1, and § 23, ante; § 164, post. What implements, etc., may be required to be brought, § 63, post. Performance of highway labor in Indian lands, Indian Law, §§ 73, 80, 94. Convict labor on highways. County Law, § 65; L. 1894, chs. 266, 664; L. 1898, ch. 133. Form of notice to corporation under this section, No. 54, post. Corporation may be required to work in any district of the town, § 33, subd. 3, ante. It is the duty of overseers to give notice to work as provided by statute. Chamberlain v. Taylor, 36 Hun, 24. § 61. Notice to non-residents. — Every overseer of highways shall give at least five days notice to every resident agent of every non-resident land-holder, whose lands are assessed, of the number of days such non-resident is assessed, and the time and place at which the labor is to be performed. If the overseer can not ascer- tain that such non-resident has an agent within the town, he shall file a written notice in the office of the town clerk, at least twenty days before the time appointed for performing such labor, con- taining the names of such non-residents, when known, and a description of the lands assessed, with the number of days labor assessed on each tract, and the time and place at which the labor is to be performed. Revised from 1 K. S., ch. 16, tit. 1, art. 3, §§ 33, 34. See notes to § 60, supra. For form, of notice to be served on agent of non-residents, see No. 55, post. For form of notice to non-residents to be filed, see No. 56, post. 68 The Highway Law. § 62. Commutations. — Every person and corporation shall work the whole number of days for which he or it shall have been assessed, except such days as shall be commuted for, at the rate of one dollar per day and such commutation money shall be paid to the overseers* of highways of the district in which the labor shall be assessed, within at least twenty-four hours before the time, when the person or corporation is required to appear and work on the highways; but any corporation must pay its commutation money on or before the first day of June in each year to the commis- sioner or commissioners of highways of the town in which the labor shall be assessed, and such commutation money shall be expended by the commissioner or commissioners of highways upon the roads and bridges of the town as may be directed by the town board except that in the counties of Albany, Dutchess, Fulton, Hamilton, Greene, Herkimer, Lewis, Montgomery, Putnam, Richmond, Rockland, Schoharie, SuffoUc, Tompkins, Ulster, Westchester and Yates, the commissioner or commissioners shall pay the same to the overseers of the districts, respectively, in which the labor com- muted for was assessed. Revised from L. 1837, ch. 431, § 3; L. 1877, ch. 344, §§ 1, 2; L. 1878, ch. 44; 1 E. S., ch. 16, tit. 1, art. 3, §§ 35, 36, as amd. L. 1866, chs. 180, 770, § 1. Amd. L. 1895, ch. 579; L. 1896, ch. 973; L. 1897, ch. 334; L. 1899, ch. 345; L. 1900, ch. 15'3; L. 1902, ch. 105, and L. 1903, ch. 27; L. 1904, ch. 495, § 1; in effect April 29, 1904. All money belonging to highway funds or collected for highway pur- poses should be paid to the treasurer of the commissioners of highways, if any, § 2, ante. As to commutation money of corporations under the former statutes, see Fowler v. Westervelt, 40 Barb., 374; 17 Abb. Pr., 59. § 63. Teams and implements. — Every overseer of highways may require a team, or a cart, wagon or plow, with a pair of horses or oxen, and a man to manage them, from any person having the same within his district, who shall have been assessed three days or more, and who shall not have commuted for his assessment; and the person furnishing the same upon such requisition, shall be entitled to a credit of three days for each day's service therewith. Eevised from 1 R. S., ch. 16, tit. 1, art. 3, § 37. As to notice to work generally, see § 60 and notes, ante. § 64. Substitutes. — Every person or corporation assessed to work on the highways, and warned, who does does* not commute therefor, may appear in person or by an able-bodied man as a substi- tute. A day's labor shall be eight hours of work, and every person • So in the original. The j£ighway Law. 69 or corporation assessed more than one day shall be allowed to work ten hours in each day. ; Eevised from 1 E. S., ch. 16, tit. 1, art. 3, § 38; L. 1880, ch. 308, § 3. § 65. Penalties for neglect to work or commute.— Every per- son or corporation assessed highway labor, who shall not commute, and who shall not appear and work when duly notified, shall be liable to a penalty of one dollar and fifty cents for every day he shall so fail to appear and work; and for wholly omitting to comply with any requisition to furnish a team, cart, wagon, implements and man, he shall be liable to a penalty of five dollars for each day's omission, and for omitting to furnish either a cart, wagon, plow, team or man to manage the team, he shall be liable to a penalty of one dollar and fifty cents for each day's omission; and if any per- son shall after appearing, remain idle, or not work faithfully, or hinder others from working, he shall be liable to a penalty at the rate of one dollar and fifty cents a day, for each hour. In those towns in which the money system of taxation has been adopted, any person who is taxed a poll tax for highway purposes as pro- vided in section fifty-three of this chapter, and who does not pay such tax in the manner and at the time, prescribed by law, shall bo liable to a penalty of five dollars. The penalties herein imposed, may be recovered by action by the overseer of highways as such, or by the highway commissioner in those towns having no such overseers, and, when collected, shall be expended and disposed of by the overseer or commissioner in the same manner as commuta- tion moneys. The penalties, when recovered, shall be applied in satisfaction of the labor assessed, for omission to perform which, the penalties were respectively imposed. The overseer of high- ways may excuse any omission to perform labor when required, if a satisfactory reason shall be given therefor; but the acceptance of any such excuse shall not exempt the person excused from com- muting for, or working the whole number of days for which he shall have been assessed during the year. Revised from L. 1837, oh. 431, §§ 4, 5; IE. S., ch. 16, tit. 1, art. 3, §§ 39-46; L. 1880, ch. 308, §§ 4-6. Amd. L. 1903, ch. 243, in effect March 86, 1903. Notice to work generally, § 60 and notes, ante. No one but the overseer can make a complaint against one neglecting to vyork. Walker v. Moseley, 5 Den., 102. And it seems that the overseer is the sole judge in respect to imposing the penalty. Bouton v. Nielson, 3 Johns., 474. A private action will not lie for an error in judgment in adjudging a person in default for not working, and thereby making a complaint TO The Highway Law. against Mm. Freeman v. Cornwall, 10 Johns., 470; and see Beach v. Furman, 9 Johns., 229. Money had and received ■will not lie to recover from an overseer money collected pursuant to the statute for an assessment of highway labor. Potter V. Benniss, 1 Johns., 515. If the assessment for highway labor were void that fact would be a good defense to an action to recover the prescribed penalty, but a mere error in the assessment not affecting the jurisdiction, would not be a good defense in such an action. Kinehart v. Young, 2 Lans., 354, 360, and see same case in notes to § 35, ante. § 66. Assessment for unperformed labor. — Eveiy overseer of highways shall on or before September first of each year, or at such other time as the board of supervisors may by resolution prescribe, make out and deliver to the commissioner of highways of his town, a list of all persons and corporations who have not worked out, or commuted for their highway assessment, with the number of days not worked or commuted for by each, charging for each day in such a list, at the rate of one dollar and fifty cents per day; and also a list of all the lands of non-residents and persons unknown, which were assessed on his warrant by the commissioners of highways, or added by him, on which the labor assessed has not been performed or commuted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day, which list shall be accompanied by the affidavit of the overseer, that he has given the notice required, to appear and work, and that the labor specified in the list returned has not been performed or commuted, and it shall be the duty of the commis- sioner of highways to collect and present such lists to the town board of his town at the meeting held on the Thursday next pre- ceding the annual meeting of the board of supervisors. The town board shall certify the amount of unpaid taxes so returned to them by the commissioner of highways to the board of supervisors. Revised from 1 E. S., ch. 16, tit. 1, art. 3, §§ 47, 49; L. 1865, ch. 522, § 1; L. 1868, ch. 791, § 4; L. 1870, ch. 461, § 1; as amended. Amd. L. 1898, ch. 350; L. 1901, ch. 437, § 3; L. 1902, ch. 75, § 2, in effect March 4, 1902. Collection of arrearages for unperformed labor, § 68, post. For form of list required by this section, see No. 59, post. The names " added by him," mentioned in this section, means the omitted and new names added by the overseer pursuant to the pro- visions of § 35, ante. See Colman v. Shattuck, 2 Hun, 497; affd., 62 N. Y., 348, in notes to § 38, ante. See Chamberlain v. Taylor, 36 Hun, 24, for statement according with statute as to overseer's duty as to unperformed labor. § 67. Penalty for refusal of overseer to provide list.— If any overseer shall refuse or neglect to deliver such list to the commis- The Highway Law. "^ "' ; '' > 71 sioner of highways or to make the affidavits herein directed, he shall for every such offense, forfeit the sum of ten dollars and the amount of taxes for labor remaining unpaid at the rate of one dollar for each day assessed. The commissioner of highways shall, in case of such refusal or neglect, recover such penalty and apply the amount recovered in making and improving the highways and bridges of the delinquent overseer's district. Revised from 1 E. S., ch. 16, tit. 1, art. 3, § 48; L. 1865, eh. 533, § S. Amd. L. 1898, ch. 350. Penalties against overseers generally, §§ 23, 33, ante. Collection of penalties, generally, § 164, post. § 68. Collection of arrearages for unperformed labor.— Each board of supervisors, at its annual meeting in each year, shall cause the amount of such arrearages for highway labor returned to them, estimating each day's labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the person, corporation, or from the non-resident real estate, speci- fied in such list, to be collected by the collectors of the several towns, in the same manner that other town taxes are collected, and shall order the same, when collected, to be paid over to the com- missioners of highways of the town wherein the same is collected, to be by them applied toward the construction, repairs and improve- ment of the highways and bridges in the district in which the labor was originally assessed. Revised from 1 R. S., ch. 16, tit. 1, art. 3, § 50; L. 1865, ch. 523, § 3; L. 1868, ch. 791, § 5; L. 1870, ch. 461, § 1; L. 1877, ch. 197, § 1. Presentation of lists for unperformed labor, § 66, ante. See Chamberlain v. Taylor, 36 Hun, 24; Colman v. Shattuck, 2 Hun, 497. § 69. Annual return of overseers. — Every overseer of high- ways shall, on the second Tuesday next preceding the time of holding the annual town meeting in his town, within the year for which he is elected or appointed, render to one of the commissioners of highways of the town, an account in writing, verified by his oath, and containing: 1. The names of all persons assessed to work on the highways in the district of which he is overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those from whom penalties have been collected, and the amounts thereof. 4. The names of all those who have commuted, and the manner in which the moneys arising from penalties and commutations have been expended by him. 72 The Highway Law. 5. A list of all persons whose names he has returned to the supervisor* as having neglected or refused to work out their highway assessments, with the number of days and the amount of tax so returned for each person, and a list of all the lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned; and he shall then and there pay to the commissioners of high- ways, all money remaining in his hands unexpended, to be applied by them in making and improving the highways and bridges of the town, in such manner as they shall direct; and if he shall neglect or refuse to render such account, or if, having rendered the same, he shall refuse or neglect to pay any balance which then may be due from him, he shall for every such offense, forfeit the sum of ten dollars. Revised from 1 R. S., ch. 16, tit. 1, art. 3, §§ 51-53; L. 1865, ch. 522, §§ 4, 5. *List now returned to comniissioners, § 66, ante. For form of return, see No. 60, post. The return of the overseer does not become the roll to which the supervisors attach their warrant, but their roll is made up from the various lists returned. Chamberlain v. Taylor, 36 Hun, 24. § 70. Noxious weeds in flighway. — Every person or corpo- ration, owning or occupying, under a lease for one or more years, any lands, abutting upon any highway, shall cause all noxious weeds, briers and brush growing upon such lands within the bounds of the highway, to be cut or destroyed between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of September, in each and every year; but boards of supervisors may fix a different period or periods, for such cutting or destruction in their respective counties. ISTo person shall place or cause to be placed, any noxious weeds, or the seeds of such weeds, within the bounds of any public highway. Any willful violation of this section, shall subject the person or corporation so offending to a penalty of ten dollars for each offense. Revised from L. 1878, ch. 49, §§ 1-3. Amd. L. 1899, ch. 681. Duty of overseers of highways to cut noxious weeds, § 20, subd. 3, ante. Powers of board of supervisors as to noxious weeds. County Law, § 12, subd. 7, page 162, post. Powers of electors of towns as to noxious weeds. Town Law, § 22, subd. 5, page 180, post. Nuisances and noisome substances on or near highway. Penal Code, § 431. § 71. Overseers or commissioners of higliway* to notify owners or occupants to remove weeds and obstructions causing • So in the original. The Highway Law. 73 snow drifts. — The overseer of every highway district or if there be .no such overseer, the commissioner of highways shall give writ- ten notice to any owner or occupant of the premises to cut all weeds, briers and brush growing within the bounds of the highway, and to remove all fences, shrubbery or other obstruction causing snow to drift in and upon said highways. If the owner of such lands is a nonresident such notice shall be served personally upon the agent of such nonresident owner residing in the town, or if there be no such agent known to the commissioner or overseer of high- ways, such notice shall be sent by mail to the last known address of such nonresident owner and a copy thereof shall be filed in the office of the town clerk of the town where the property is situated. If such owner or occupant shall not cut such weeds, briers and brush and remove such fences, shrubbery or other obstruction, as so required within ten days after receiving such notice, or within ten days after such notice shall have been served or filed as herein provided, such overseer or commissioner of high- ways shall do such work and make a report under oath to the supervisor of the town of the amount expended by him thereon, and the ownership and occupancy of the several parcels of land against which the labor was performed, on or before the first day of JSTovember in each year; such supervisor shall certify these state- ments to the board of supervisors at its next annual meeting, and such board shall include the amounts included in such statements ill the taxes assessed upon the lands upon or against which the labor was performed, the same to be collected with the other t-axes, and paid over upon the order of the supervisor to the parties entitled thereto. Revised from L. 1878, ch. 49, § 5; L. 1886, ch. 291, and L. 1887, eh. 604. Amd. li. 1899, ch. 681; L. 1904, ch. 478, § 6; in efeect April 28, 1904. See notes under § 70, supra. Form No. 119. , § 72. Abatement of tax for removal of fence.— Any inhabit- ant liable to a highway tax, who shall remove from lands owned or occupied by him, the fence along any public highway, for the purpose of preventing the drifting of snow into such highway, shall be allowed by the overseer of highways, in abatement of his highway tax, the time actually expended in removing such fence, and in replacing the same, pursuant to the directions of the overseer of highways. Revised from L. 1875, ch. 196, § 1. As to obstructions of highway by snovF, see § 21, ante. For list of abatements of taxes upon various grounds, see notes tO' i 44, ante. 74 The Highway Law. It is provided by ch. 291 of the Laws of 1890 that commissioners of highways may apply in open town meeting for a vote authorizing any sum not exceeding $300 in any one year, to be raised for the purpose of providing wire fencing to be substituted for other fences along the highways, in order to prevent snow blockade of highways, see page 203, post. The removal of highway fences does not affect either the rights of the town or the rights of the abutters. Eozell et al. v. Andrews, 103 N. Y., 150; see Sewell v. City of Cohoes, 11 Hun, 626; affd., 75 N. Y., 45; Matter of Hand Street, 52 Hun, 206. § 73. Abatement of tax for street lamps.— Any person or corporation owning or holding real estate, or other property liable to highway tax, except in the county of Kings, other than in cities and incorporated villages, who shall, with the consent of the overseer of highways in charge of the district in which such property is assessed, and in such places as he may direct, erect a street lamp, and cause the same to be properly attended to and kept burning during such hours of each night as the overseer of highways may direct, shall be allowed by the overseer of highways, in abatement of such highway tax, six dollars annually, or such portion of six dollars as the annual highway taxes upon such real estate or other property may be. Revised from L. 1884, ch. 251, § 1. For list of abatements of taxes upon various grounds, see notes to § 44, ante. § 74. Rebate of tax for using wagon tires of certain width. — EA-ery person, a\1io, during the year ending June first, eighteen hundred and ninety-three and each succeeding year thereafter, uses on the public highways of this state only wagons or vehicles with wheels upon which two or more horses are used the tire of which shall be not less than three inches in width, shall receive a rebate of one-half of his assessed highway tax for each such year, not exceeding however in any one year the sum of four dollars or four days' labor; but no such rebate shall be allowed for the use of such wagons in a county where the board of supervisors, under the powers granted by section seventy-nine of the county laAV, have enacted a law forbidding the use of wagons on the highways having tires less than three inches in width. The right to such rebate shall not be affected by the use upon the public liighways of buggies, carriages or platform spring wagons carrying a weight not exceeding one thousand pounds. Upon making an affidavit showing that he has complied with the provisions of this section during any such year, he shall be credited by the overseer of The Highway Law. t5 highways of the road district in which he resides or any road district where he is assessed with such rebate. Such affidavit may be taken before any overseer of highways who is hereby authorized to administer such oath. Added by L. 1893, ch. 468, § 1; and L. 1904, ch. 3^4, § 1; in effect April 13, 1904. For list of abatements of taxes, see § 44 and notes, ante. An officer authorized to administer an oath is entitled to a fee of twelve cents. Code Civ. Proc, § 3298. AKTICLE IV. Laying Out, Alteeing and Discontikuing Highways, and Lay- ing Out Peivate Eoads. Section 80. Highways by dedication. 81. Survey. 82. Application. 83. Application for commissioners. 84. Appointment of commissioners, and their duties. 85. Notice of meeting. 86. Decision of commissioners in favor of application. 87. Damages in certain cases, how estimated. 88. Decision of commissioners denying application. 89. Motion to confirm, vacate or modify. 90. Limitation upon laying out highways. 91. Laying out of highways through burying grounds. 92. Costs, by whom paid. 93. Damages assessed, and costs to be audited. 94. When officers of different towns disagfree about highway. 95. Difference about improvements. 96. Highways in two or more towns. 97. Laying out, dividing and maintaining highway upon town line. 98. Final determination, how carried out. 99. Highways abandoned. 100. Highways by use. 101. Fences to be removed. 102. Penalty for falling trees. 103. Fallen trees to be removed. 104. Penalty for obstruction or encroachment. 105. How removed, and liability for not removing. 106. Private road. 107. Jury to determine necessity, and assess damages. 108. Copy application and notice delivered to applicant. 109. Copy and notice to be served. 76 The Highway Law. Section 110. List of jurors. 111. Names struck off. 112. Place of meeting. 113. Jury to determine and assess damages. 114. Their verdict. 115. Value of highway discontinued. 116. Papers to be recorded in town clerk's office. 117. Damages to be paid before opening the road. 118. Fees of officers. 119. Motion to confirm, vacate or modify. 120. Costs of new hearing. 121. For what purpose private road to be used. 122. Highwaj'S or roads along division lines. 123. Adjournments. § 80. Highways by dedication. — Whenever land is dedicated to a town for highway purposes therein, the commissioners of highways in such town may, either with or without a written application therefor, and witliput_^cxpenses to the town, make an order laying out such highway, upoiTTiIiiig and recording in the to^vn clerk's office, with such order a release of the land from the owner thereof. A highway so laid out must not be less than two rods in width. Section ninety of this chapter does not apply to a highway by dedication. Such commissioners of high- ways may also, upon written application and with the written con- sent 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, in their town, upon filing and recording in the town clerk's office, with such application, consent and order, 41 release from all damages from the oumers of the lands taken or afl'ected thereby, when the consideration for such releases, as agreed upon between such commissioners and owners, shall not, in any one ease, from any one claimant, exceed one hundred dollars, and from all claimants, five hundred dollars. An order of the commission- ers as herein provided shall be final. Revised from L. 1880, ch. 114, §§ 3-4. Amd. L. 1897, ch. 304; L. 1904, ch. 387, § 1; in efCect April 26, 1904. Private laws for laying out, etc., highways. Const., art. 3, § 18, page 167, post. Construction of highways across railroad tracks, L. 1853, ch. 62, page 188, post. Forms for laying out highways upon dedication or release, Nos. 61-67, post. Forms for discontinuance are readily adapted frona same. There are four ways of creating highways: By statutory proceedings; by prescription (see § 100, post), and by dedication which may be of two The Highway Law. 77 kinds, either an offer and implied acceptance or an offer and express acceptance. An offer may be qualified and if accepted cum onere, the land becomes a highway subject to the burden. These burdens cannot then be increased, nor can the dedication be revoked. Dedication does not pass title to the land in absence of a conveyance, but gives an easement for highway purposes only. City of Cohoes v. D. & H. C. Co., 134 N. Y., 397; Bowen v. Delaware, L. & W. E. K. Co., 153 N. Y., 476. Filing maps showing highways may be a dedication of them. Smith V. City of Buffalo, 90 Hun, 118; 159 N. Y., 427; Eckerson v. Village of Haverstraw, 6 App. Div., 103; Matter of Fox Street, 54 App. Div., 479; contra, Ludlow v. City of Oswego, 25 Hun, 260; McMannis v. Butler, 49 Barb., 176; 51 Barb., 436; and see T. I. P. Assn. v. Tucker, 173 N. Y., a03; contra, Klug v. Jeffers, 88 App. Div., 246. Proceedings inoperative for want of release. People ex rel. Eastman V. Scott, 70 App. Div., 618. Dedication may be revoked, if it is not accepted within a reasonable time, and reference to a dedicated highway in subsequent deeds is not a rededication thereof. An order discontinuing an unaccepted dedicated highway is a refusal of it. Matter of Opening Beck Street, 19 Misc., 571; affd., 54 App. Div., 634; Matter of Fox Street, 19 Misc., 571; affd., 54 App. Div., 479. And what is a reasonable time in which to accept a dedicated highway depends upon the circumstances of each case. Matter of Fox Street, 64 App. Div., 479. But dedication cannot be revoked after the rights of third parties have vested. City of Buffalo v. D., L. & W. K. E. Co., 68 App. Div., 488. Nor may dedication be revoked after acceptance. Directing the construction of a sewer through the dedicated highway is an acceptance thereof. As to what shows acceptance generally, see Matter of Hunter, 163 N. Y., 543; Uhlfelder v. City of Mount Vernon, 76 App. Div., 349, See, as to revocation by co-tenant, McMannis v, Butler, 51 Barb., 436. Death is a revocation of dedication if it occurs before acceptance. Dedication must be by acts which are unmistakable and decisive. 1-eople V. Kellogg, 67 Hun, 546. The adoption of a plan for a street may constitute an acceptance. Mayor, etc., of New York v. Law et al., 6 N. Y. Supp., 638; affd., 185 N. Y., 380. As to what does not show acceptance of a dedicated highway, see People V. Livingston, 27 Hun, 105. Dedication need not be written, but may rest in the acts and dedara- -tion of the parties. Cook v. Harris et al., 61 N. Y., 448. Mere dedication without acceptance does not constitute the dedicated lands a highway. City of Buffalo v. D., L. & W. E. E. Co., 68 App. Div,, 488; Palmer v. Palmer, 150 N. Y., 139; Matter of Opening of Beck St., 19 Misc., 571; affd., 54 App. Div., 634; City of Oswego v. Oswego Canal Company, 6 N. Y., 257; Bissell v. N. Y. C. & H. E. E. E. Co., -23 N. Y., 61; 7^ The Highway Law. Morse \. City of Troy, 38 Hun, 301; and see Eaynor v. Syracuse Uni- versity, 35 Misc., S3; People v. Underbill et al., 144 N. Y.. 316. Xor will mere dedication without acceptance constitute a street bo as to make a municipality liable for injuries received through its defective condition. Baldwin v. Jenkins, 1 \Yeek. Dig., 398; sep City of Oswego V. Oswego Canal Co., 6 N. Y., 257. The provisions of a city charter specifying a method of acceptance of land dedicated for highway purposes are not exclusive. Matter of Hunter, 164 N. Y., 365. A town may take a conveyance of land for highway purposes during a part of the year only and may take such interest in lands as the neces- sity of the case or the public good may require. Hughes et al. v. Bingham et al., 135 N. Y., 347. Highways, by dedication, follow a receding shore line of navigable waters, unless a contrary intent appeared in the dedication. Mark v. Village of West Troy, 151 X. Y., 453; Matter of City of Brooklyn, 73 N. Y., 179. But where the circumstances of the dedication indicate an intent to restrict the street from following the receding shore line the street will not be so extended. Mark v. Village of West Troy, miiira. Nor will it follow the receding shore line where it was never laiU out to. and never actually extended to the shore line. Matter of City of Yonkers, 117 N. Y., 564. A commissioner of highways may lay out a highway only by order, and a promise to make such an order is not a sutticieut laying out of the highway. Matter of Shawangunk Bridge, 20 Week. Dig., 503; 100 N. Y., 642. A ciil de sac may become a highway by dedication. Vandemark v. Porter, 40 Hun, 397; People ex rel. Williams v. Kingman, 24 N. Y., 559. There must be an intent to dedicate, followed by an abandonment of exclusive enjoyment and an intent to accept, followed by use and appro- priation. The intent and evidentiary acts are the essential things. Flack V. A'illage of Green Island, 122 N. Y., 107. Both dedication and acceptance may be inferred from long continuous user. Porter v. Village of Attica, 33 Hun, 605; Cook v. Harris et al., 61 N. Y., 448. Recording is not necessary to constitute the locus in quo a highway by dedication. Driggs v. Phillips, 103 N. Y., 77. The acts of dedication and acceptance must be unequivocal. Vande- mark V. Porter, 40 Hun, 397. A town, in its corporate capacity, has power to take lands for highway purposes by conveyance, voluntary or otherwise. Hughes et al. v. Bingham et al., 135 N. Y., 347; Vail v. Long Island R. E. Co., 106 N. Y., 287. A vendor under a land contract is the " owner " of the land. Smith v. Ferris, 6 Hun, 553. The Highway Law. 79 § 81. Survey. — Whenever the commissioners of highways shall lay out any highway, either upon application to them or otherwise, they shall cause a survey thereof to be made, and shall incorporate the survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. Revised from 1 E. S., ch. 16, tit. 1, art. 1, §§ 55, 56, and L. 1880, ch. 114, JS 2-4. For form of order under this section, see Nos. 63, 67, 84, post. Establishing a center line and determining' the width on either side of such line is sufficient. People ex rel. Eckerson v. Village of Haverstraw, 47 N. Y. S. R., 891. And it has been held that the width must be clearly designated in laying out the highway. Matter of Eeeney, 20 Misc., 373. But where the statute prescribes the width, a center line alone is sufficient. Lawton v. Commissioners of Cambridge, 3 Caines, 178; The People V. Commissioners of Salem, 1 Cow., 33; People ex rel. Waters v. Diver, 19 Hun, 363. And, in the absence of a contrary showing, a single line made by the commissioners will be presumed to be such a center line. The People V. Commissioners of Highways of Eed Hook, 13 Wend., 310. The width may be decreased to less than the legal requirement where the decrease is at the point where a highway by use is aaopted as a part of the, new highway, and this may be done regardless of the absence of an order adjudging the old road so adopted to be a highway. Snyder V. Plass, 38 N. Y., 465; see Walker v. Caywood et al., 31 N. Y., 51; see § 100, post. And the commissioners cannot determine the width of a highway which is such by use only; the user determines the width in such cases. Tal- mage v. Huntting, 39 K. Y., 447; and see cases under § 4, subd. 8, ante, and under § 100, post. A failure to incorporate the survey in an order is fatal, and a mere flurvey signed by the commissioners is not an order. Pratt v. The People, 13 Hun, 664. But the statute is met by attaching the survey to an order referring to the survey and recorded with it. Van Bergen v. Bradley, 36 N. Y., 316. And it has also been held a sufficient compliance with the statute to file the survey at the same time with an order referring to the road aa •" according to the survey thereof," where both survey and order are recorded in the same book, there being no doubt as to the survey being the one referred to in the order. McCarthy v. Whalen, 19 Hun, 503; afEd., 87 N. Y., 148. It has been held unnecessary for all of the commissioners to sign the order, but one commissioner may not sign it for another in his absence, even though asked to do so, if so asked before the survey was completed, 80 .The Highway Law. or the order drawii. Tbdd v. Todd, 3 Hun, 298; 5 Thomp. & Cpok, 531; and see Tucker v. Eankin, 15 Barb., 471; Christy V, N«\vton, 60 Barb., 33S|. i .Nor need all commissioiiers be present when the survey is mad^. Marble v. Whitney, 28 N. Y., 297. The clerk's act in recording-, a survey is ministeirial. 'He is not author- ized to refuse to record it because of the omission of " Jr." after the signature of a commissioner, nor because a commissioner did not take and file the oath of oiSce. The People v. Collins, 7 Johns., 549. As to curing an irregularity in laying out a highway by subsequent survey and recording, see Parker v. Van Houten, 7 Wend., 145; Colden v. Thurbur, 2 Johns., 424. The commissioners need not follow the precise line indicated by the applicant, for he can only indicate the general course of the highway, and a reasonable variance from it will be allowed. Hallock v. Woolsey, 23 Wend., 328; People v. Carman, 69 Hun, 118; People ex rel. Cook v. Hil- dreth, 1 Silv. Supr. Ct., 358; 24 N. Y. S. E., 458; 5 N. Y. Supp., 308; affd., 126 N. Y'., 360; Matter of King, 42 Misc., 480; and see Matter of Buel, 168 N. Y'., 423, and additional cases under § 86, post. The description may be too indefinite to be effective, and it is so where it describes a highway as commencing " about 25 rods " east from a cer- tain house " at or near the foot of a hill," and passing through a certain person's land. The description should be such that from it alone the road could be laid out. The order shoxild contain a surve}' or description of the road sufficient to locate it; though a literal following of section 81 may not be necessary. A survey not incorporated in an order is of no avail upon appeal. Matter of De Camp, 19 App. Div., 564; s. c, 151 N. Y'., 557. But a description by reference to an established highway may be suffi- cient. The People v. The Commissioners, etc., 37 N. Y., 360. See, also, for the sufficiency of the description, Woolsey v. Tompkins, 23 Wend., 323; Hallock v. Woolsey, 23 Wend., 327; Tucker v. Kankin, 15 Barb., 471; Johnson v. Loveless, 18 Week. Dig., 49. Jurisdiction must appear either on the face of the order or aliunde and will not be presumed. Miller v. Brown, 56 N. Y., 383. § 82. Application. — Any person or corporation assessable for highway labor, may make written application to the commis- sioners of highways of the town in which he or it shall reside^ or is assessable, to alter or discontinue a highway, or to lay out a new highway. Revised from 1 K. S., ch. 16, tit. 1, art 1, § 2, and 1 R. S., ch. 16, tit. 1, art. 4, § 54, and L. 1836, ch. 122, § 1; see L. 1880, ch. 114. For form of application under this section, see No. 68, post. Laying out highways in Indian reservations. Indian Law, §§ 12, 73, 80. Discontinuance of highways in certain towns which have expended over $300,000 for macadamizing, L. 1885, ch. 611; L. 1896, ch. 464. The" Hiohway. Law: fit This section dofe not apply to streets of a village incorporated nildfef the general act. E^B. C6. t. Village of Haverstraw, 143 N. Y./146; Matter of Livingston St., 83 N. Y., 631. ; The Highway Law substantially changes the former procedure, Mat- ter of Lawton, 23 Misc.,^ 436. Under §§ 145-147 of the General Village Law (eh. 414, L. 1897), the trustees of a village can close a street only at a session of the board. People ex rel. Mershon v. Shaw, ,34 App. Div., 61. A town meeting may not discontinue a highway. Hughes et al. v. Bingham et al., 135 N. Y., 347; Driggs v. Phillips, 103 N. Y., 77. An application to establish an " old road " as a public highway is not authorized by the statute. Christy v. Newton, 60 Barb., 333. But an application may include a portion of a highway a;lready in existence and a portion of the new highway may be identical with such olu highway. The People v. The Commissioners, etc., 37 N. Y., 360. An application to lay out a new, and discontinue an old, highway, may be joined, and the invalidity of one proceeding will not invalidate the other. The People v. Robertson, 17 How. Pr., 74. One may properly apply to have a private road laid out as a public highway. Matter of Burdick, 27 Misc., 298. The petition must give an accurate description of the proposed high- way under the General Village Law. People ex rel. Eckerson v. Trus- tees, etc., 137 N. Y., 88; but see Matter of Buel, under § 83, post. Failure of the application to show that the applicant is assessable for highway labor is cured by an allegation of that fact in the return of a writ of certiorari. People ex rel. Brockway v. Whitney, 17 Week. Dig., 456. But if the defect is not so cured, it is fatal to the application. Matter of Buel, 168 N. Y., 433; Matter of Pugh, 46 App. Div., 634. It has been held that objections to the sufficiency of the petition must be taken by motion to set aside order appointing commissioners, and not in the first instance after the merits have been argued. Matter of Pugh, 22 Misc., 43; but see same case, judgment reversed, 46 App. Div., 634. It has been held that commissioners could lay out a highway, or discontinue one, upon their own motion, and not wait for an applica- tion before acting. Gould v. Glass, 19 Barb., 179; The People v. Super- visors of Eichmond County, 20 N. Y., 253; Marble v. Whitney, 28 N. Y., 297; People ex rel. Bristol et al. v. Nichols et al., 51 N. Y., 470. But it is held that they may not make an application for the laying out of a highway under article 4 of the Highway Law. People ex rel. Bevins v. Supervisors, 82 Hun, 298. Widening a highway is a mere alteration and not the laying out of a new highway. People ex rel. Lasher v. McNeil, 3 Thomp. & Cook, 140; and see on the general principles of diiferenee between altering an old 6 82 The Highway Law. highway and laying out a new one. People ex rel. Bowen et al. v. Jones, 63 N. Y., 306; also Buchholz v. N. Y., L. E. mpanied by the written undertaking of the applicant executed by one or more sureties, approved by the judge, to the effect that if the commis- sioners appointed determine that the proposed highway or altera- tion is not necessary or that the highway proposed to be discon- tinued is not useless, the sureties will pay to the commissioners their compensation at tlie rate of four dollars for each day neces- sarily spent and all costs and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of fifty dollars. Revised from 1 R. S., ch. 16, tit. 1, art. 4, §§ 60, 61, 65, 81; L. 1880, ch. 114; L. 1875, ch. 431; L. 1877, ch. 465; L. 1881, ch. 696, § 1; amd. L. 1894, ch. 334; L. 1897, ch. 344; L. 1904, ch. 353, § 1; in effect April 16, 1904. Forms of notice, application and undertaking, Nos. 69-72, post. Provision was made by L. 1897, ch. 286, for improving highways in certain towns of eight thousand or more inhabitants. This act was held unconstitutional in Matter of Henneberger, 155 N. Y., 420. The liability of an unsuccessful applicant to open a highway for the costs of the proceedings is limited by this section and § 88, to fifty dollars, and when he has, by order of the court, paid that amount to The Highway Law. 83 the opposing parties, he can not be made to pay an additional amount for commissioners' fees. Fatten v. Miller, 28 App. Div., 517. But where the applicant moves to discontinue the proceedings, the court may, as a condition of allowing such discontinuance, impose the payment of more than ordinary taxable costs. Matter of Trustees of White Plains, 65 App. Div., 417. An undertaking not bearing the approval of the county judge is defective, but such approval may be given nunc pro tunc. Matter of Fanning, 26 App. Div., 627. The petition required by this section need not show that the land is. not dedicated to the town for highway purposes, and has not been released as in this act provided, nor that the application is made within thirty days after an application has been made to the com- missioner of highways, but such a petition must be verified and mutil show the applicant's right to present it. Matter of Buel, 168 N. Y., 423; contra, Matter of Pugh, 46 App. Div., 634. This and the following sections point out the initiatory steps in all proceedings to lay out new highways. Matter of Taylor and Allen, 8 App. Div., 395. See, as declaratory of the statute. People ex rel. Knapp v. Keck, 90 Hun, 497; also. People ex rel. Smith v. Allen, 37 App. Div., 248. § 84. Appointment of commissioners and tlieir duties.— Upon the presentation of such petition, the county judge or special county judge must appoint three disinterested freeholders, who shall not be named by any person interested in the proceedings, who shall be residents of tie county, but not of the town wherein the highway is located, and who shall not be related by consan- quinity or affinity within the sixth degree, to the applicant or 1» any person interested in the proceeding or to the owner of any lands, to be taken or affected by the laying out, alteration or discon- tinuance of a highway, as commissioners to determine the questions mentioned in the last section. They shall take the constitutional oath of offiice, and appoint a time and place at which they shall all meet to hear the commissioners of highways of the town where such highway is situated, and others interested therein. They shall personally examine the highway described in the application, hear any reasons that may be offered for or against the laying out, altering or discontinuing of the highway, and assess all damages by reason thereof. They may adjourn the proceedings before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their proceedings, and shall reduce to writing all oral evidence given before them upon the subject of the assessment of damages. They shall make duplicate certificates of their decision, and shall file one in the town clerk's office of the town, and the other, with 84 The Highway Law. such minutes and evidence, in the cotinty clerk's office of the county in which the highway or proposed highway is located, Kevised from 1 E. S., ch. 16, tit. 1, art. 4, §§ 60, 61, 66-69; L. 1845, eh. 180, i 5; L. 1881, ci. 696, § 1; L. 1904, ch. 353, § 2; in effect April 16, 1904. Many additional cases bearing- upon the duties of commissioners under this section will be found in the notes under § 89. For form of order, notice of appointment, oath of office, appointment of meeting, subpoena and oath of witness required by this section, see Nos. 73-75, 78, 79, post. See, as declaratory of the statute. People ex rel. Knapp v. Keck, 90 Hun, 497. The order need not recite that the commissioners are freeholders. Matter of Baker, 173 N. Y., 249. The persons appointed must be freeholders at the time of appoint- ment, otherwise their appointment may be vacated upon motion. Matter of Trask, 81 App. Div., 318. The requirement that the commissioners take an oath of office is not waived by one who has had neither actual nor constructive notice of its omission. The People v. Connor, 46 Barb., 333. Technical errors in the admission or rejection of testimony before com- missioners may be disregarded. Matter of Pugh, 22 Misc., 43. This case was reversed in 46 App. Div., 634, but doubtless upon the ground that the errors were to be considered more than technical, and the rule stated is probably the correct one. Relationship does not disqualify a commissioner to act. Matter of Ogden St., 63 Hun, 188. Commissioners have the right to act upon their own view of the prem- ises as well as upon oral testimony. In the Matter of The New Reservoir, Sheld., 423. Opponents to the application owning property which wall be affected by the discontinuance of a highway, though not abutting upon it, have a right to be heard before the commissioners, and the latter have no authority to oblige such parties to pay for that privilege. Matter of Coe, 19 Misc., 549. As to surviving commissioners continuing the proceedings after the death of one of their number, see People ex rel. Hewlett v. Mayor, 63 N. Y., 291. § 85. Notice of meeting. — The applicant shall cause, at least eight days previous, written or printed notice to be posted up in not less than three public places in the town specifying, as near as may be, the highway proposed to be laid out, altered or discontinued, the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed by the county court to examine the highway as men- tioned in the last section. Such notice shall also, in like time, The Highway Law. 85 be personally served on th.e owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age; if they do not reside in the same town, or service cannot be made, a copy of such notice shall be mailed to such owner and occupant, if their post-office address is known to the applicant or ascertainable by him upon reasonable inquiry. Revised from 1 E. S., ch. 16, tit. 1, art. 4, §§ 59, 62; L. 1845, ch. 180; L. 1873, ch. 69, § 1, and L. 1878, ch. 114. For form of notice and proof of service thereof, see Nos. 76, 77, pose. The required service upon the " occupant " of land means service upon the actual occupant of the surface of the land. People v. Supervisors of Allegany Co., 36 Hovr. Pr., 544. The word " ovs'ner " means the absolute owner of the fee. A vendee under a contract of sale is not such an owner. Smith v. Ferris, 6 Hun, 553; contra, Benedict v. Calkins, 45 Hun, 549. Failure to serve notice on an owner or occupant, as required by this section, is fatal to the proceedings as to him, and the commissioner of highways may raise this objection upon proceedings by mandamus to compel the opening and working of the highway. People ex rel. Smith V. AUen, 37 App. Div., 248; affd., 162 N. Y., 615; see also Matter of Pugh, 46 App. Div., 634; People ex rel. Heiser v. Gilon, 131 N. Y., 551; People ex rel. Willis v. Smith, 7 Hun, 17; The People v. Judges of Herkimer Com- mon Pleas, 20 Wend., 186. Failure of statute to provide for notice of taking of property or ascer- taining of damages will render it unconstitutional. People ex rel. Dexter V. Hosier, 56 Hun, 64. It would seem that technical defects in the notice are not fatal, if the proceedings are properly carried on regardless of such defects. People ex rel. Ludlum v. Wallace, 2 Hun, 152, 4 Thomp. & Cook, 438. As to failure to properly mail notices and failure of notice generally, see People ex rel. Scrafford v. Stedman, 57 Hun, 280. A notice and opportunity to be heard will cure such defects generally. Snyder v. Trumpbour, 38 N. Y., 355. Thus, it was held that a verbal notice was sufficient if the owner actually appeared and contested the application without objection to the sufficiency of his notice. Mohawk & Hudson Bailroad Co. v. Artcher, 6 Paige, 83. Commissioners cannot be compelled to select any particular place for their hearing, but may conduct the hearing at such place as they shall see fit to designate. Matter of Coe, 19 Misc., 549. Failure to produce proofs of compliance with this section may be sup- plied and a new application for confirmation be thereafter made. Matter of Fanning, 26 App. Div., 627. Appearance and failure to object to lack of notice is waiver of failure to notify. People ex rel. Becker v. Burton, 65 N. Y., 452. 86 The Highway Law. § 86. Decision of commissioners in favor of application. — If a majority of the commissioners appointed by the county court shall determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is use- less, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that eilect. If the petition is for the laying out of a highway, the commissioners shall also include in their certificate what the prob- able cost would be of laying out and completing the proposed highway, in their opinion, based upon the evidence given before them on the hearings. Revised from 1 K. S., ch. 16, tit. 1, art. 4, § 63; L. 1845, ch. 180, and L. 1880, ch. 114; amd. L. 1901, ch. 441. For proceedings upon decision of commissioners, see § 89, post. For provisions for carrying out final determination, see § 98, post. For provisions for deduction of benefits from amount of damages, see § 87, post. Allowance for additional fencing required, § 122, post. For form of decision under this section, see No. 80, post. For constitutional provisions as to ascertaining compensation for pri- vate property taken for public use, see Constitution, art. 1, § 7, page 167, post. Where a public highwtn- is laid out over lands which were already bur- dened with a private right of way when the present owner acquired them, and he holds subject to that easement, and the burden will not be appre- ciably increased by the new highwaj', for which iiii Cdscmrnt only is taken, only nominal damages can be allowed. Matter of Eleventh St., 64 App. Div., 609; Matter of North Fifth St., 64 App. Div., 611; In re Vil. of Olean v. Steyner et al., 135 N. Y., 341; Matter of Adams, 141 N. Y., 297. But where the iee is taken by the public, substantial damages may be awarded. Matter of 173d Street, 78 Hun, 487; Matter of 116th Street, 1 App. Div., 436. Or if taken for other public purposes than for a highway, nominal damages alone will not be sufficient. Matter of Brooklyn Heights, 48 Barb., 288. And this right to nominal damages only is applicable to a case where a party sells lands which have been mapped out in lots and streets indicated upon the map, the lots being sold with reference to the map. Livingston v. Mayor of New York, 8 Wend., 85; Wyman v. Mayor of Nevir York, 11 Wend., 486; In the Matter of Furman St., 17 Wend., 649; In the MatltT of Thirty-second St., 19 Wend., 128; Matter of Twenty-ninth Street, New York, 1 Hill, 189; Matter of Thirty-ninth Street, New York, 1 Hill, 191; Matter of Lewis St., 2 Wend., 472. And this is so, e^en though the map was made by commissioners in partition. The People v. City of Brooklyn, 48 Barb., 211. Thb Highway Law. 87 A grantee of a portion of lands so plotted, who opens one of the indi- cated streets to a less width than indicated upon the map, and builds, or pays taxes, upon the reserved strip, is still entitled to nominal damages only for the taking of the reserved portion. In re Extension of North Third Avenue, 3 N. Y. Supp., 641. But see contra where the street indi- cated upon the map was never accepted by the city. Eeinhardt et al. v. The City of Buffalo, 39 N. Y. S. R., 304; 15 N. Y. Supp., 844. A majority decision of the commissioners is sufficient, but all must be present. Babcock v. iJamb & Doty, 1 Cow., 238, and see the specific pro- vision of the section itself. It seems that the certificates must show that all met and deliberated or were duly notified, though a majority may decide and sign the certificate. Chapman v. Swan, 65 Barb., 210; People v. Hinds et al., 27 Barb., 94; 30 H. Y., 470; and see Phillips v. Schumacher, 10 Hun, 405, and notes to § 81, ante. The right to assessment of damages before the highway is opened, worked or used may be waived; what amounts to such a waiver. Chap- man V. Gates, 46 Barb., 313; see, also. Supervisors of Erie v. City of Buffalo, 63 Hun, 565. The decision of the commissioners as to the necessity of laying out a highway is not reviewable collaterally on the ground that one of the peti- tioners was not a freeholder. Ham v. Silvernail, 7 Hun, 33. Nor will the commissioners' decision as to the necessity of a highway be reversed unless there is no aspect in which it can be legally sustained. Matter of Burdick, 27 Misc., 298. Nor may the decision be reviewed for an indefiniteness of description after a lapse of fifty years. Dominiek v. Hill, 6 N. Y. S. E., 329; 26 Week. Dig., 239. Nor may the decision be attacked collaterally for any but jurisdictional defects where it has remained unquestioned for several years. People ex rel. Dady v. Supervisor, 154 N. Y., 381. But it may be collaterallj' attacked where it is absolutely void. Miller v. Brown, 56 N. Y., 383. And the determination is absolutely void if no jurisdiction was obtained, Harrington v. The People, 6 Barb., 607; The People ex rel. Wait v. Eggle- ston et al., 13 How. Pr., 123. The award of the commissioners having been confirmed, a property owner seeking to set aside the assessment cannot attack the allowance made another whose lands were taken. Eeinhardt et al. v. City of Buffalo, 39 N. Y. S. E., 304; 15 N. Y. Supp., 844, and see Cole v. Trustees of Williamsburg, 10 Week. Dig., 659. But he may attack the award to another at the time of confirmation. Matter of Thirty-ninth St., New York, 1 Hill, 191. The institution of proceedings to take lands is a waiver of any alleged dedication of such lands for highway purposes. In re Vil. of Olean ▼. Steyner et al., 135 N. Y., 341. 88 Tk-E Highway Law. Compensation Trill not be allowed for a building' erected after notice by statute of plan to lay out a street xipon the site of the building. In the Matter of Furman St., 17 Wend., 649. But where there \a as no notice by statute of the intention to lay out the street, and the building in question was erected intermediate the filing of the plan and the opening of the street, it ^^•as held that compensation should be made for the building. Matter of Opening Rogers Ave., 29 Abb. N. C, 361; 22 X. Y. Supp., 27; but see § 90, post. The rule of damages where a portion of a number of lots is taken is the difference between the value of the lot as left and the value of the undiminished area. Matter of Opening Riverside Avenue, 83 Hun, 50. The commissioners are not bound to follow exactly the route of the petition. Matter of Buel, 168 N. V., 423; People ex rel. Cecil v. Carman, 69 Hun, 118; contra. People ex rel. v. Vil. Whitney's Point, 102 N. Y., 31. If the commissioners shall decide that a substantial variance is to be made from the route designated in the petition, they should notify the land owner of such fact before evidence is received upon the question of damages, so that the witnesses can give testimony based on the route the highway is to take. Matter of Feeney, 20 Misc., 272; see notes to § 81, ante. As to v\hen an owner is deprived of his property, see Rehfeldt v. City of Brooklyn, 46 N. Y. S. R., 302; 18 N. Y. Supp., 750; affd., 138 N. Y., 663. As to compensation to city for taking lands ovmed by it, see Matter of Ninth Ave. and Fifteenth St., 45 N. Y., 729. As to measure of damages where a new highway is laid out over an old plank-road, see The People v. Lawrence, 54 Barb., 589. As to measure of damages under grade crossing act, see Matter of Grade Crossing Comrs., 6 App. Div., 327; Conkling v. N. Y., Ont. & West. Railway Co., 102 N. Y., 107; Rauenstein v. N. Y., L. & W. E. Co., 136 N. Y., 528. ■OTiere one has an easement of thoroughfare only in lands, he sustains no damage when those lands are taken for a public highway. Matter of 116th Street, 1 App. Div., 436. Where one is both damaged and benefited by the improvement, the net result only need be given. Livingston v. Mayor of New York, 8 Wend., 85; In the Matter of William and Anthony Streets, 19 Wend., 678. A written agreement with the owners of the land as to amount of their damage may constitute an assessment thereof. People ex rel. Aspinwall V. Supervisors of Richmond, 20 N. Y., 252. Separate sums as damages should be awarded to lessor and lessee; but if only one sum is awarded the former, the latter may recover from him his proportionate share, and where separate sums are awarded each, the decision is conclusive as between lessor and lessee. Coutant v. Catlin, 2 Sand. Ch., 485, and see Turner v. Williams, 10 Wend., 139. A widow entitled to dower in the land is entitled to the value of her The Highway Law. 89 life-estate and an award thereof to the estate of her late husband is ■erroneous. In the Matter of William and Anthony Streets, 19 Wend., 678. Separate awards are required for each of a number of lots, especially -where a number of them are already imder contract of sale. Matter of Daly, 23 App. Div., 232, and see Lowerre v. Mayor, etc., of N, Y., 46 Hun, 253, and Genet v. City of Brooklyn, 99 N. Y., 296. And the report of the commissioners may be sent back for an appor- tionment of the damages assessed. Matter of Daly, 33 App. Div., 232. When the assessment is completed and filed, the power of the commis- sioners to assess is exhausted, and any attempt to reassess damages is of no legal effect. People ex rel. Mann v. Mott, 5 Thomp. & Cook, 207; 60 N. Y., 649. A part only of a road may be discontinued and one end may be bounded "by private property. People ex rel. Bristol et al. v. Nichols et al., 51 N. Y., 470. A highway that has never been opened cannot be discontinued, where there has been no change of circumstances rendering it unnecessary. Matter of the Opening of Beck street, 19 Misc., 571; affid., 54 App. Div., «34; People ex rel. Miller v. Griswold, 67 N. Y., 59. But if the original occasion for the road has ceased before it is opened it may be discontinued though never opened. The People ex rel. Clark v. The Com'r of Highways of Town of Reading, 1 Thomp. & Cook, 193; Matter of 'Fo^m Street, 54 App. Div., 479. Before a highway can be discontinued it must be shown to be " useless," not merely unnecessary; nor is it sufficient to warrant discontinuance that a new road somewhere else would be better. Matter of Coe, 19 Misc., 549. It seems that a conditional discontinuance of a highway is not allow- able, as, for example, a discontinuance upon condition that gates be made. If such an order bo made, a subsequent order directing that the gates be removed is void. The People v. The Judges of Suffolk, 24 Wend., 249. A mere resolution of village trustees discontinuing a street and sub- stituting another without application, hearing or release of damages is sufBcient, and the village is estopped to still assert control over the street. E. B. Co. v. Village of Haverstraw, 142 N. Y., 146. Upon the question of the practicability of using another road exclu- sively, thereby rendering the road in suit useless, it is proper to consider the changes proposed to be made in the former road. People ex rel. Bailey v. Sherman, 15 Hun, 575. Village trustees can determine to close a street only at a session of the board, and the validity of action taken by previously signing an instru- ment, which it was pretended had the effect of closing a street, may be challenged by certiorari. People ex rel. Mershon v. Shaw, 34 App. Div., 61. Owners of private easements in discontinued highways cannot be deprived of their rights without compensation. Matter of The Mayor, 28 App. Div., 143; appeal dismissed, 156 N. Y., 677. 90 The Hiqitway Law. One is entitled to compensation for the discontinuance of a highwaj- wliicli afforded him convenient access to his lot, even though there was still left another means of access thereto. Egerer v. N. Y. C. & H. R. R. E. Co., 39 App. Div., 652; see also Matter of City of Rochester, 24 App. Div., 383; but see contra Fearing et al. v. Ii-win et al., 55 N. Y., 486. The action of commissioners in discontinuing a highway does not relate back so as to destroy the cause of action of an abutter for injuries for illegal discontinuance or obstruction. Buchholz v. N. Y., Lake Erie & W. R. R. Co., 148 N. Y., 040; but see Briggs v. Bowen, 60 N. Y., 454, and Drake v. Rogers, 3 Hill, 604, under § 89, post. The commissioners should lay out the highway so that it will be a» short as possible, and still serve the public. Matter of Town of East Hampton, 21 App. Div., 623. § 87. Damages in certain cases, how estimated.— The- owner of lands within the bounds of a highway discontinued may inclose the same and have the exclusive use thereof, and the bene- fits resulting therefrom may be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the discontinued highway. Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 71; L. 1847, oh. 455, § 22; L. 1845, ch. 180, and L. 1880, ch. 114, § 3. An abutter is not entitled to the land within the bounds of a dis- continued highway, unless he owns the land over which the discontinued highway was laid out. Jackson v. Hathaway, 15 Johns., 447. It would seem that laying out a highway presumptively gives a mere easement of travel, with its incidents and the fee remains in the abutter. Evans v. Board of Street Commissioners, 84 Hun, 206; Trustees of Presb. Society in Waterloo v. The Auburn & Rochester R. R. Co., 3 Hill, 567; Supervisors v. Sea View R. Co., 23 Hun, 180; Jackson v. Hathaway, 15 Johns., 447; Cortelyou v. Van Brundt, 2 Johns., 357; Town of Galen v. Clyde & Rose Plank Road Co., 27 Barb., 543; Fanning v. Osborn et al.^ 102 N. Y., 441; City of Buffalo v. Hoffeld, 6 Misc., 197. The law presumes that a grantor who conveys lands bounded upon a public highway does not intend to reserve the fee of the highway in himself. Pell v. Pell, 35 Misc., 472. " An easement only can be taken unless the statute plainly contem- plated and provided for the api)ropriation of a larger interest," but the legislature has power to authorize the acquiring of a larger interest than a mere easement. Supervisors v. Sea View R. Co., supra. And a grant of land by the legislature to a municipality for highway purposes may carry the fee of the land. DeWitt et al. v. E. T. R. Co., 134 N. Y., 495. Under the Dutch law the fee of the highway, and not a mere ease- ment, was in the public, and where title is deduced from Dutch patents, it carries a fee, so that a grant from a municipality could carry a fee to such highways after their abandonment as such. Mott v. Clayton, The Highway Law. 91 9 App. Div., 181, distinguishing Mortimer v. New York Elevated R. E. Co., 57 Super. Ct., 244; 25 N. Y. S. E., 872; 6 N. Y. Supp., 898. As to the fee of streets in New York city, see, also, Matter of Seven- teenth St., 1 Wend., 262; Mott v. Mayor of New York, 2 Hilt., 358; The People V. Kerr, 27 N. Y., 188; Matter of Lexington Avenue, 29 Hun, 303; affd., 92 N. Y., 629. Where an easement only is taken seisin and the right to convey still continue in the owner of the soil. Whitbeck v. Cook, 15 Johns., 483. And he may use it in any way which will not interfere with the public easement; but he must take care that the highway remains safe for travel. Town of Clay v. Hart, 25 Misc., 110; affd., 41 App. Div., 625. And in such a case, when the highway is abandoned, the entire and exclusive right to the land, over which it was laid out, reverts to the owner of the soil. Jackson v. Hathaway, 15 Johns., 447. But public roads constructed by turnpike or other corporations l)ecome public property upon their abandonment or the dissolution of the corporation, and become public highways thereafter. People ex rel. Keene v. Supervisors, 151 N. Y., 190; Heath v. Barman, 49 Barb., 496; affd., sm6 nom. Heath v. Barmore, 50 N. Y., 302. And see § 80 of the County Law, providing that boards of supervisors shall have power, by a tw^o-thirds vote, to provide for the use of abandoned turnpike, plank or macadamized roads within any town as public highways. See L. 1897, ch. 596; L. 1899, ch. 594. Where the public has a mere right of passage over a highway, one who stands upon the highway and abuses and insults by words the owner of an adjoining lot is guilty of trespass ab initio. Adams v. Eivers, 11 Barb., 390. The owner of the fee of a highway is entitled to one-half the stone xemoved in digging a sewer trench. Deverell v. Bauer, 41 App. Div., 53. An abutter is entitled to the lateral support of his land and buildings \>y the highway a s against one who is wrongfully excavating in the high- way and may enjoin further excavation and may compel a restoration of the highway. Pinegan v. Eckerson, 26 Misc., 574; Milburn v. Fowler, 27 Hun, 568. But as to the right of lateral support for iuildings, see Finegan v. Eckerson, 32 App. Div., 233. The abutter, who owns the fee, may remove the soil from a portion of the highway, if he does not injure the highway, nor affect the freedom of «gress or ingress of adjoining owners. Williams v. Kenny, 14 Barb., 629, and see Fisher v. City of Eochester, 6 Lans., 225, and notes under § 15. An abutter is entitled to compensation if an electric railroad is con- structed in front of his premises. Peck v. Schenectady Ey. Co., 170 N. Y., 298. § 88. Decision of commissioners denying application. — If a majority of the comirLissioners appointed by county court shal] 92 The Highway Law. determine that tlie proposed highway or alteration is not necessaiy, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect. The costs and expenses necessarily incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision and of the amount of such costs and expenses by the county court, such costs and expenses not exceeding fifty dollars shall be payable by the applicants. Revised from 1 R. S., ch. 16, tit. 1, art. 4, § 82; amd. L. 1894, eh. 334. For method of confirmation of commissioner's report, see § 89, post. For cases npon law and procedure under this section, see notes under § 86, ante. As to security for costs and expenses, see § 83, ante. For form of certificate and endorsement of cost and expenses, see- No. 81, post. The amount of costs recoverable from an unsuccessful applicant seems to be limited to fifty dollars only, regardless of the fact that commission- ers' fees remain unpaid. Patton v. Miller, 28 App. Div., 517. Proceedings to open a highway may be discontinued upon the applica- tion of a village which commenced the proceedings, but more than ordi- nary costs and disbursements may be required to be paid as a condition of the discontinuance. Matter of Trustees of White Plains, 65 App. Div.,. 417. § 89. Motion to confirm, vacate or modify.— Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office, any party interested in the proceeding may apply to the court if in session or to the county judge or special county judge, appointing the commissioners for an order confirming, vacating or modifying their decision, and such court or judge may confirm, vacate or modify such decision. If the decision be vacated, the court or judge may oi'dcr another lie;Tring of the matter before the same or other commissioners, if no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court or judge shall be final, excepting that a new hearing may be ordered as herein provided, and excepting that any such decision may be re^dewed on appeal upon questions affecting jurisdiction, and rulings and exceptions made and taken upon the The Highway Law. 93 hearing before the commissioners. If the final decision be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. Eevised from 1 K. S., ch. 16, tit. 1, art. 4, §§ 84-90, and L. 1845, ch. 180; L. 1847, ch. 455, §§ 3, 6, 9; amd. L. 1895, ch. 716; L. 1899, ch. 703; L. 1904, ch. 353, § 3; in efEect April 16, 1904. For costs of this motion, see § 152, post. Tor form of notice of motion under this section, see No. 83, post. For form of order under this section, see No. 88, post. The decision of the commissioners will not be reversed upon appeal, unless evidence of error is very strong. People ex rel. Stanton v. Horton, 8 Hun, 357, and see Peo. ex rel. Hanford v. Thayer, and Matter of Lawton, post. Modifications of the decision of the comimissioners by the County Court of its ovyn motion may be stricken out. Matter of Sly, 177 N'. Y., 465. It has been held that the report should be as final as a verdict. In the Matter of the New Reservoir, Sheld., 423; Matter of Opening Rogers Ave- nue, 29 Abb. N. C, 361; 32 N. Y. Supp., 27. New proofs may be presented upon the hearing under this section. Matter of De Camp, 151 N. Y., 557. An order of commissioners laying out the hig'hway will be vacated where public necessity did not demand it, and a better route could be had, and irreparable injury would result to the relator if the order were not vacated. People ex rel. Wilkinson v. Ireland, 75 Hun, 600. An order laying out a highway should be set aside where only two or three parties are benefited and the parties remitted to their right to lay out a private road. Matter of Lawton, 22 Misc., 4S-6, and, see Matter of Burdick, 27 Misc., 298. But an order has been sustained where only three farms were reached by the road as laid out. Matter of Town of Whitestown, 24 Misc., 150, and see Matter of Burdick, 27 Misc., 398. An order laying out the highway may be sustained where the highway, as laid out, is a cul-de-sao merely, or where it was prolonged to meet a private road only. Matter of Burdick, 37 Misc., 398; People v. Kingman, 24 N. Y., 559; Matter of Town pt Whitestown, 24 Misc., 150. An order was also sustained where a highway was prolonged to meet a public street. People ex rel. Clinch et al. v. Moore et al., 39 N. Y. S. E., 881; 15 N. Y. Supp., 504; aifd., 129 N. Y., 639. It has been held that the decision of the commissioners vrill not be vacated because of technical errors in the admission or rejection of testi- mony. Matter of Pugh, 23 Misc., 43. But this case was reversed in 46 App. Div., 634. The reversal was, doubtless, because the errors were con- sidered to be more than technical, and the rule announced by the lower court is probably the correct one, though its application to that case may have been unwarranted. 94 The Highway Law. The same case holds that the award of damages would not be set aside as against the weight of evidence, where the commissioners had viewed the premises. It was also held that the commissioners were justified in disregarding the owner's plans for the future use of his property in making the award. Matter of Pugh, supra. The County Court has power to review every question on this motion that the Supreme Court could review on certiorari. People ex rel. Han- ford V. Thayer, 88 Hun, 136; Matter of Lawton, 22 Misc., 426. But it cannot be expected to reverse the decision of the commissioners arbitrarily, or except from manifest error. Matter of Town of Whites- town, 24 Misc., 150, and see Matter of Burdick, 27 Misc., 298; and People ex rel. Stanton v. Horton, supra. The decision of the Coanty Court is final upon the necessity of the highway. Matter of Mitchell, 85 App. Div., 277. Confirmation is conclusive as to all matters within the jurisdiction of the commissioners, but not as to other matters. Riker v. Mayor, etc., of New York, 3 Daly, 174. The decision of the County Court under this section will not be reviewed by certiorari. Matter of Taylor and Allen, 8 App. Div., 395; People ex rel. E. E. Co. V. County Court, 152 N. Y., 214; People ex rel. Hanford v. Thayer, 88 Hun, 136. Proceedings to open a highway may be discontinued upon the applica- tion of a village which commenced the proceedings, bxit more than ordi- nary costs and disbursements may be required to be paid as a condition of the discontinuance. Matter of Trustees of White Plains, 65 App. Div., 417. The reversal of an order discontinuing a highway destros's its effect from the beginning, even to the extent of excusing an alleged trespass meantime. Briggs v. Bowen, 60 N. Y., 454, and see Drake v. Rogers, 3 Hill, 604. But the action of the public authorities discontinuing a highway can- not relate back so as to destroy the cause of action of an abutter for Injuries from an illegal discontinuance or obstruction. Buchholz v. N. Y., Lake Erie & W. R. R. Co., 148 N. Y., 640; s. c. 71 App. Div., 452. The order of confirmation cannot be attacked in collateral proceed- ings, where it has been unattacked for several years and no jurisdic- tional defects are shown. People ex rel. Dady v. Supervisor, 154 N. Y., 381, and see notes under §§ 86 and 105. An appeal from the order is void where the original proceedings were void for want of jurisdiction. Harrington v. The People, 6 Barb., 607. But a void order is no bar to a new proceeding. The People ex rel. Wait V. Eggleston et al., 13 How. Pr., 123. The decision of the commissioners cannot be reviewed in equity for errors in law or want of jurisdiction. Hyatt v. Bates, 40 N. Y., 164. The Highway Law. 95 But it seems that equity may interfere by injunction to prevent the taking of property owned by a railroad company and used by it for station and similar purposes. Pros. P'k & C. 1. E. R. Co. v. Williamson et al., 91 N. Y., 552. Service of notice of an application to review the decision of the com- missioners must be made within thirty days after the same shall have been filed in the town clerk's office, but the hearing need not be held before the expiration of that time; and an order erroneously dismissing an application to review as not made in time is appealable. Matter of Glenside Woolen Mills, 93 Hun, 188; Matter of Thompson, »5 App. Div., 221. The decision of the County Court is final on the questions of the necessity of the highway and the amount of compensation, but may be reviewed on appeal as to jurisdiction and sufficiency of description of the highway. Matter of De Camp, 151 N. Y., 557; but see provisions of the section itself now allovdng review in other cases than those above named. The question of damages is purely one for the commissioners to decide, and the court has no power to change the amount 'awarded. See Constitution, art. 1, § 7, post, and Matter of Feeney, 20 Misc., 272; People ex rel. Hanford v. Thayer, 88 Hun, 136; Matter of Carpenter, 11 Misc., 690; Matter of Brook Ave., 8 App. Div., 294. See Matter of De Camp, 151 N. Y., 557, supra. But where the determination of the commissioners of estimate and assessment was reached by the application of an erroneous principle, and where such determination is so palpably wrong as to shock the sense of justice, the court will review the findings upon the question of damages. Matter of the Opehing of Beck St., 19 Misc., 571; Matter of Forty-eighth St., 19 App. Div., 602. Matters happening after the laying out of a road cannot present any question upon appeal. People ex rel. Hubbard et al. v. Harris et al., 63 N. Y., 391. But see People ex rel. Martin v. Albright, 14 Abb. Pr., 305; The People v. Goodwin, 5 N. Y., 668. Neither failure to give notice, nor a departure from the route, are waived by an attorney's appearance and argument of the merits where his authority is not shown. People ex rel. ScrafCord v. Stedman, 57 Hun, 280. The matter may be referred back to a part of the old commissioners sitting with enough new commissioners to make the requisite number. In the Matter of Henry Street, New York, 7 Cow., 400; and see the second sentence of this section. If part of an appropriation of land is void, the entire report must go back, since material changes may be necessary. In the Matter of John and Cherry Sts., 19 Wend., 659. 96 The Highway Law. An award when confirmed is conclusive against collateral attack, except for jurisdictional defects. In the Matter of Department of Parks, 73 N. Y., 560; People ex rel. Keteltas v. Fitch, 78 Hun, 321. Where an award is made for damages to leased lands, a part of the damages being awnrded to the landlord and a part to the lessee, the award is conclusive as to the share of each. But where the entire damage is awarded to the landlord in ignorance of the lessee's ownership of building, and when it is shown that a certain sum was included in the award for injuries to the building, the lessee may recover that sum. Coutant V. Catlin, 2 Sandf. Ch., 485; Turner v. Williams, 10 Wend., 139. As to who may be heard upon a motion to confirm, see Matter of Coe, 19 Misc., 549. A further return by the commissioners cannot be compelled by the County Court pending an appeal to the Appellate Division from an order of the County Court confirming the report of the commissioners. Matter of Baker, 54 App. Div., 21. Failure of commissioners to designate width of highway as required by section 90 cannot be cured by County Court on motion to confirm made under section 89. Matter of Feeney, 20 Misc., 272. §90. Limitations upon laying out highways. — No highway shall be laid out less than three rods in width, nor through an orchard of the growth of four years or more, or any garden culti- vated as such for four years or more, or grape vineyard of one or more years' growth, and used in good faith for vineyard purposes, or buildings, or any fixtures or erections for the purposes of trade or manufactures, or any yard or inclosure necessary to the use and enjoyment thereof, without the consent of the owner or owners thereof, unless so ordered by the county court of the county in which the proposed highway is situated; such order shall be made on the certificate of the commissioners of highways of the town or towns in which the proposed highway is situated, showing that the public interest Avill be greatly promoted by the laying out and opening of such highway, and that commissioners appointed by the court have certified that it is necessary; a copy of the certifi- cate, with eight days' notice of the time and place of the hearing before the county court, shall be served on the owners of the land, or if they are not residents of the county, upon the occupants; the county court upon such certificates, and the proofs and other pro- ceedings therein, may order the highway to be laid out and opened, if it deems it necessary and proper. The commissioners of high- The Highway Law. 97 ways shall tlien present the order of the ooianty court, with the certificate and proofs upon which it was granted, certified by such court to the general term of the supreme court in the judicial department in which the land is situated, upon the usual notice of motion, served upon the owner or occupant, or the attorney who appeared for them in the county court. If such general term of the supreme court shall confirm the order of the county court, the commissioners of highways shall then lay out and open such highway as in other cases. The provisions of this section shall not apply to vineyards planted, or to buildings, fixtures, erections, yaa-ds or inclosures, made or placed on such land after an applica- tion for the laying out and opening of the highway shall have been made. In case the highway to be laid out shall constitute an extension or continuation of a public highv^ay already in use, and shall not, as to such new portion, exceed half a mile in length, the commissioners may lay out such extension or continuation, of a width of less than three rods, provided, however, that it be not less than the widest part of the highway of which it is an extension or continuation. In such case the commissioners shall specify in their certificate the precise vddth of the new portion of such high- way, and shall certify that such width is as great at least as the widest part of the highway of which it is a continuation or extension. Eevised from L. 1S69, ch. 34, § 1; 1 B- S., ch. 16, tit. 1, art. 4, §§ 57, 58, 80; L. 1873, ch. 773; L. 1875, ch. 483, § 1, subd. 10; L. 1876, eh. 357, § 1; L. 1890, ch. 368; amd. L. 1895, eh. 508. Form of consents, certificates and orders, hereunder, Nos. 85-89, po«/. Roads may not be opened through lands of State hospital uniess authorized by the legislature. Insanity Law (L. 1896, ch. 545), § 33. This section does not apply to highways by dedication. § 80, ante. Provision as to conflrmiation by the General Term of the Supreme Court has not been changed to correspond with the substitution of the Appel- late Division for the former General Term. The proper practice in these cases is to present the question to the county judge upon the certificates of the commissioners and any evidence that they may have taken, virtually retrying the case before the county judge. The hearing before the General Term should be upon the evidence and proceedings before the county judge. The record need not contain all of the precedent steps if the certificates show that the jury has passed 7 98 The Highway Law. upon the necessity of the highway and there is no allegation of the omis- sion of the necessary precedent steps. Matter of James, 43 Hun, 67. A road should not be laid out where it is of little advantage to the public and must go through orchards, houses and school-houses. Mat- ter of Four Corner Road, 37 N. Y. S. E., 711; 13 N. Y. Supp., 458. Nor should a road be laid out through a house and garden when the owner offers a full right of way elsewhere which is but a few rods out of the direct course. Matter of Field, 61 App. Div., 618. Quaere, as to whether anyone but a person who owns property of the nature specified in this section can oppose the confirmation of an order by the General Term. Matter of Oakley Avenue, 85 Hun, 446. Failure of commissioners to designate width of highway as required by section 90 cannot be cured by County Court on motion to confirm made under section 89. Matter of Feeney, 20 Misc., 272. Where three-fourths of a highway has been dedicated or constructed by private subscription, and two dangerous grade crossings were avoided, held that the highway should be laid out, but it seems that the com- missioners, however, should first report it to be necessary. Matter ot Tappan, 83 Hun, 613. Land enclosed with, but not used as, a garden may be taken as though not so enclosed; definition of " garden." People ex rel. Stanton v. Horton, 8 Hun, 357; People ex rel. Cooke et al. v. Com. of H'ways, 57 N. Y., 549. A highway may be laid out through an enclosed plot containing fruit trees, if it does not interfere with the enjoyment of the trees. People v. Judges of Dutchess, 23 Wend., 360. And whether land is a garden or not is a question of fact for the jury. People V. Moore, 39 N. Y. S. K., 881. The extension of a yard after a highway has been laid out does not bring the case within the provisions of this section. The People ex rel. Miller v. Comes et al., 1 Hun, 530; 3 Thomp. & Cook, 766. And see the direct provision of this section in the fourth sentence thereof. Nor will the location of buildings upon the line of a road after it has been laid out have any effect. Carris v. The Commissioners, etc., of Waterloo, 2 Hill, 443; People ex rel. Hubbard et al. v. Harris et al., 63 N. Y., 391; and see the fourth sentence of this section. A few wild apple trees and cherry trees and two prickly pear trees along the fence do not constitute an orchard. People ex rel. Waterman V. Schellenger et al., 33 N. Y. S. R., 353; 10 N. Y. Supp., 947. A defendant may justify an assault and battery by showing that he was endeavoring to prevent a highway being laid through his orchard without the necessary preliminary steps being taken. Harringfton v. The People, 6 Barb., 607. The fact that one line of a highway passes through an orchard does not violate the provisions of the statute. Snyder v. Trumpbour, 38 N. Y., 355. The Highway Law. 99 It would seem that a yard or enclosure must, in order to be protected, be defined in some way, as by being enclosed, or having visible marks, or being definitely occupied. A ditch conducting water to a mill is not an erection within the section, and may be built over, if a passage be left for the water. The People v. Kingman, 24 N. Y., 559. Lands occupied by a railroad for a station-house, etc., are within the provisions of the section. Albany Northern R. E. Co. v. Brownell, 2.4 K. Y., 345; see Pros. P'k & C. I. E. E. Co. v. Williamson et al., 91 N. Y., 5S2. But the road bed is not within the protection of this section, nor is a car yard, and a highway may be laid out acrosg them without compensa- tion. L. 1853, ch. 62, p. 188, post; Pres't, etc., D. & H. C. Co. v. Vil. White- hall, 90 N. Y., 21; Boston and Albany E. E. Co. v. President, etc., of VUlage of Greenbush, 53 N. Y., 510. So of a village or city street. Matter of Folts Street, 18 App. Div., 568; People ex rel. Ithaca v. D., L. & W. E. E. Co;, 11 A. D., 280, afEd., 159 N. Y., 545. Injunction is a proper method to be adopted to prevent the commis- sioners from taking these forbidden places for highway purposes. Albany Northern E. E. Co. v. Brownell, and Pros. P'k, etc., Co. v. Williamson et al., supra. The word " owner " in the section means the absolute owner, not a vendee under a contract of sale, but the vendor in such a case. Smith v. Ferris, 6 Hun, 553. Consent may be by Or release of damages. McCarthy v. Whalen, 19 Hun, 503; affd., 87 N. Y., 148. Or it may be by word of mouth. The People ex rel. Martin v. Albright, 14 Abb. Pr., 305; 23 How. Pr., 306. But a verbal consent may be revoked at any time before it is acted upon, and a revocation was allowed pending an appeal from a refusal of the commissioners to lay out the road. The People v. Goodwin, 5 N. Y., 568. But if acted upon, the consent cannot be withdrawn. People ex rel. Van Eensselaer v. Van Alstyne, 3 Keyes, 35; 3 Abb. Ct. App. Dec, 575. Commissioners have no authority to lay out a road under this section until after the confirmation by the General Term. People ex rel. Banner V. Temple, 27 Hun, 128. As to certiorari to review order after confirnaation, see People ex rel. Banner v. Temple, 27 Hun, 128, and People ex rel. Beardslee et al. t. Dolge, 45 Hun, 310; affd., 110 N. Y., 680. But see Matter of Taylor and Allen, 8 App. Div., 395, and cases following in notes under § 89, ante. As to opening an old road through an orchard as a highway by use, see Snyder v. Trumpbour, 38 N. Y., 355; Snyder v. Plass, 28 N. Y., 465. Application for confirmation of order was denied where the papers were not certified as required by § 90, and the undertaking was not approved as required by § 53, and there was no proof of 100 The Highway Law. compliance with § 85, but these several omissions being supplied, a new application may be made. Matter ot rannlng-, 36 App. i)iv., 627. The route specified in the application should be closely followed and land owners notified of any substantial variance. Matter of Feeney, 20 Misc., 272; but see Matter of Buel, 168 N. Y., 423. Where a commissioner makes a false return to a writ of certiorari to review his proceedings in laying out a highway through relator's barn yard, and the relator is damag-ed thereby he may recover his dam- ages of the commissioner. Beardslee et al. v. Dolge, 143 N. Y., 160. §91. Laying out highways through burying-grounds.— No private road or highway shall be laid out or constructed upon or through any burying-ground, unless the remains therein con- tained are first carefully removed, and properly reinterred in some other burying-ground, at the expense of the. persons desiring such road or highway, and pursuant to an order of the county court of the county in which the same is situated, obtained upon notice to such persons as the court may direct. Kevised from L. 1868, eh. 843, § 1. The Rural Cemetery Act (L. 1847, ch. 133, § 10, as amd. L. 1877, eh. 31) provides, as to the cemetery lands of associations formed under that act, that, so long as they are used for cemetery purposes, " no street, road, avenue or thoroughfare shall be laid out through such cemetery, or any part of the lands held by such association for the purpose aforesaid without the consent of the trustees of such association, except by special permission of the Legislature of the State." See Matter of The Mayor, 23 App. Div., 518. As to taking a cemetery for park purposes in New York city and for public purposes generally, see Matter of Board of Street Opening, 62 Hun, 499; 133 N. Y., 329, holding that cemetery lands may be taken after the remains are removed and reinterred. § 92. CostS; by whom paid. — In all cases of assessments of damages by commissioners appointed by the county judge or special county judge, the costs thereof shall be paid by the town thereof except when reassessment of damages shall he had on the application of the party for whom the damages were assessed, and such damages shall not be increased on such reassessment, the costs shall be paid by the party applying for the reassessment; and when application shall be made by two or more persons for the reassessment of damages, all persons who may be liable for costs under this section shall be liable in proportion to The Highway Law. 101 the amount of damages respectively assessed to them by the first assessment, and may be recovered by action in favor of any person entitled to the same. Each commissioner appointed by the court, for each day necessarily employed as such, shall be entitled to four dollars and his necessary expenses. Revised from L. 1845, ch. 180, § 14; L. 1847, ch. 455, §§ 3-13; see L. 1880, ch. 114, § 4. Amd., L. 1897, ch. 344, § 2; L. 1904, ch. 353, § 4; in effect April 16, 1904. For provisions as to giving- security for costs, see § 83, ante. As to auditing costs, see § 93, post. As to costs of motions in highway proceedings, see § 153, post. Where a highway was determined by commissioners to be necessary, but the proceedings failed owing to the lack of the consent or certificate required by section 90, held, that there could be no valid assessment of damages, and the town was not liable for the fees of the commis- sioners, since the town is liable for such fees only where the proceeding is carried through successfully, otherwise the applicant is chargeable with them. Matter of Miller, 9 App. Div., 360. The costs provided for in this section are the allowance to the parties under section 152, post, and probably the fees and expenses of the commissioners, but do not include the fees of an attorney hired by the comijiissioner to institute the proceedings. People ex rel. Bevins v. Super- visors, 83 Hun, 398. §93. Damages assessed, and costs to be audited.— All damages to be agreed upon, or which may be finally assessed, and costs against the town, as herein provided, shall be laid before the board of town auditors, or in towns not having a board of town auditors, before the town board, to be audited with the charges of the commissioners, justices, surveyors or other persons or officers employed in making the assessment, and for whose services the town shall be liable, and the amount shall be placed upon the town abstract and levied and collected in the town in which the highway is situated, and the money so collected shall be paid to the commis- sioners of highways of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. Kevised from L. 1845, ch. 180, § 7; L. 1847, ch. 455, §§ 3-13, 33; amd. L. 1898, ch. 106. As to costs generally, see §§ 83, 93, ante, and § 153, post. Where damages are awarded to one for whom no damages are provided by the statute, as to one through whose land the highway does 102 The Highway Law. not pass, the supervisors may refuse to audit the claim. The I'eople ex rel. Newton & Kent v. The Supervisors of the County of Oneida, 19 Wend., 102. The charges of the commissioners, justice, surveyors, etc., mentioned in this section do not include the attorney's fees of the applicant. Eppig V. City of Nevy York, 57 App. Div., 114. No conditions may be imposed upon the payment of the award. Riker V. Mayor, etc., of New York, 3 Daly, 174. Where there are not suflicient funds to pay all the awards funds should be raised with all reasonable diligence, and from what funds are available the awards should be paid pro rata and not in the order of presentation. And payment pro rata may be enforced by action against the one upon whom the duty of payment lies. Sage v. City of Brooklyn, 8 Abb. N. C, 279; affd., 89 N. Y., 189. The court will not summarily order the payment of the award, save in exceptional cases free from doubt as to consequences. Matter of Lewis, 48 Super. Ct., 536. Ordinarily awards belong to the owner of the fee of the land at the time the award is made. Conkling v. Zerega, 72 Hun, 134. One to whom premises are granted before the confirmation of an award is entitled to the award. McGee v. The City of Brooklyn, 3 Misc., 620. It is not the duty of commissioners to pass upon conflicting and strongly controverted claims of title to property, upon which claims title to the award depends. In the Matter of the New Keservoir, Sheld., 408. A review may be ordered to determine who is entitled to an award. Matter of Opening Morris St., 19 App. Div., 613; and see Matter of Board of Street Opening, 27 App. Div., 265; affd., 158 N. Y., 721. Where the method of determiniag the ownership of funds awarded is provided by the local charter an action against the city will be dismissed where the city has carried out its part of the charter pro- visions. Patterson v. City of Binghamton, 154 N. Y., 394. Where one person owns the fee of the land and another owns an ease- ment in it, the two together are owners of the land and are entitled to share the damages paid. Matter of Board of Street Opening, 27 App. Div., 265; affd., 158 N. Y., 721; In the Matter of Opening Eleventh Ave., 81 N. Y., 436. As to conclusiveness of awards, see People v. Supervisors of St. Law- rence, 5 Cow., 292; Craig v. Super\'isors of Orange, 10 Wend., 585. § 94. When officers of different towns disagree about high- ways. — When the commissioners of highways of any town or officers of any village or city having the powers of commissioners of highways, shall differ Avith the commissioners of highways of any other town, or with the officers of such a village or city having The Highway Law. 103 the powers of commissioners of highways in the same county, relating to the laying out of a new highway or altering an old highway, extending into both towns, or a town and a village or city, or upon the boundary line between such towns or such town and a village or city, or when commissioners of highways of a town in one county, shall differ with the commissioners of high- ways of a town, or the officers of a village or city having the powers of commissioners of highways, in another cotmty, relating to the laying out of a new highway, or the alteration of an old highway, which shall extend into both counties, or be upon the boundary line between such counties the commissioners of high- ways of both towns or the officers of the village or city having such powers, shall meet on five days written notice, specifying the time and place, within some one of such towns, villages or cities, given by either of such commissioners, or officers having powers of commissioners of highways, to make their determination in writing, upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their dis- agreement to the county court of that county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town, village or city, where the highway is located; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested, view the proposed highway, or proposed alteration of a highway, admin- ister all necessary oaths, and take such evidence as they shall deem proper, and shall decide all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of roadbed, or any point that may arise relating thereto; and if they decide to open or alter such highway, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the land through which such new or altered highway is proposed to pass, and shall report such evidence and decision to such court, with their assess- ment of damages, if any, with all convenient speed. On the 104 The Highway Law. coming in of such report, the court may, by order, confirm, modify or set aside the report in whole or in part and may order a new appraisal by the same or other commissioners, and shall decide all questions that may arise before it. And all orders and decisions in the matter shall be filed in the county clerk's office of each county where the highway is located, and shall be duly recorded therein. This section shall not be so construed as to compel any town or towns to construct, repair or maintain a bridge upon a boundary line between towns, where, previous to the passage of such amendatory act, an application had been made to any court, to compel the construction, repair and maintenance of a bridge upon such a boundary line, and such application had been denied. Eevised from 1 E. S., ch. 16, tit. 1, art. 4, § 72, and L. 188], ch. 513. Amd. L. 1901, ch. 162; L. 1903, ch. 460, in effect May 7, 1903. See L. 1870, ch. 311, page 205, post, for additional provisions on this subject. For form of notice, certificate of disagreement, orders, etc., under this section, see Nos. 90-93, post. For form of constitutional oath of ofBce, see No. 74, post. For general provisions as to laying out, altering and discontinuing highways, see notes under §§ 80-93, ante, which are particularly appli- cable to proceedings under this section. The Special Term has no jurisdiction to appoint commissioners until the commissioners of highways have met and certified their disagree- ment as required by this section. Matter of Barrett, 7 App. Div., 482. It was held under the former statute that these provisions apply to highways on town lines, as well as those crossing town lines. People ex rel. Titsworth v. Nash, 38 N. Y. S. R., 730; 15 N. Y. Supp., 29; and see § 97, post. The provisions o£ this section apply to proceedings under § 96, post. It seems that an order appointing commissioners from either of the interested towns, or from either of the interested counties, where the highway is in different counties, should be set aside. An order made at a Special Term under this section is appealable. Matter of Barrett, 7 App. Div., 482; but contra as to order of County Court. Matter of Taylor & Allen, 8 App. Div., 395; and see People ex rel. R. R. Co. v. County Court, 4 App. Div., 542. Where the description of the highway given in the certificate of dis- agreement unmistakably indicates the highway intended, it will be sufficient, regardless of apparent inconsistencies. People ex rel. Titsworth V. Nash, 38 N. Y. S. R., 730; 15 N. Y. Supp., 29. §95. Difference about improvements. — When the commis- sioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways therein, shall The Highway Law. 105 desire to make a new or altered highway extending beyond the bounds of such town, village or city, a better highway than is usually made for a common highway, with a special grade or road-bed, drainage or improved plan, and are willing to bear the whole or a part of the expense thereof beyond such bounds, but cannot agree in regard to the same, upon written application of either of the commissioners or officers, and notice to all parties interested, such court shall make an equitable adjustment of the matters, and may direct, that in consideration of the payment of such portion of the additional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade and road-bed, and do whatever may be necessary and proper for the completion of such better highway, advancing the money to do it; the amount of damages to each owner or occupant, shall be ascertained and determined by commissioners, who shall be appointed, and whose proceedings shall be conducted in the manner provided by the last preceding section; and upon the coming in of their report of damages, and of the expenses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed to each owner or occupant, if any, and all such expenses be paid by each, any or all of such towns, villages or cities as shall be just and equitable, and the damages and expenses assessed and allowed, as in this and the last preceding sections, shall be paid and col- lected as if fixed by the commissioners of highways of the towns, or the officers of such villages or cities having the powers of such commissioners. Every commissioner appointed as herein provided, shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. Eevised from 1 E. S., ch. 16, tit. 1, art. 4, § 73, and L. 18S1, ch. 513. Forms under this section, No. 94, post. § 96. Highway in two or more towns. — When application is made to lay out, alter or discontinue a highway located in two or more towns, all notices or proceedings required to be served upon the commissioners of highways, shall be served upon the commissioners of highways of each town; and the commissioners 106 The Highway Law. appointed by the court, shall determine the amount of damages to be paid by each town, and when the towns are in different counties, the application for the appointment of commissioners shall be made to a special term of the supreme court held in the district where the highway or some part of it is located; and the same proceedings shall thereafter be had in the supreme court of such district as are authorized by this chapter to be had in the county court. New. An application may be made under this section by a person assessable in either town. The only notice of proceeding' that need be served on the commissioner is the application to lay out the highway. People ex rel. Knapp V. Keck, 90 Hun, 497, but see § 83, ante. And the petition need not ask that the highway be laid out in each of the two towns. Matter of Burdick, 27 Misc., 298. The commissioners must certify a disagreement, as provided in section 94, in order to give the court jurisdiction, and the provisions of sec- tion 94 are applicable to proceedings under this section. Matter of Barrett, 7 App. Div., 482. It seems that an order appointing residents of either county, when the towns are in different counties, should be set aside, and an order made at Special Term under this section is appealable. Matter of Barrett, supra. Application should be made to Special Term of Supreme Court where highway is in two counties. Matter of Taylor & Allen, 8 App. Div., 395. § 97. Laying out, dividing and maintaining highway upon town line. — An application to lay out a highway upon the line between two or more towns shall be made to the commissioners of highways of each town, who shall act together in the matter; and, upon laying out any such highway, they shall divide into two or more highway districts, in such manner that the labor and expense of opening, working and keeping the same in repair through each of such districts may be equal, as near as may be, and to allot an equal number of the districts to each of the towns; each district shall be considered as wholly belong- ing to the town to which it shall be allotted, for the purpose of opening and improving the highway and for keeping it in repair; and the commissioners of highway shall cause the highway and the partition and allotment thereof to be recorded in the office The IIigiiway Law. 107 of the town clerk in each of the respective towns. If such high- way be upon a line between one or more towns and a city or incorporated village, such application shall also be made to the officers of such city or village having the powers of commissioners of highways, and such officers may agree with the highway com- missioners of such towns as to the division of the labor and expense of opening, working and maintaining such highway. Whenever such officers shall disagree as to such division, application may be made for the appointment of commissioners, and the same pro- cedure shall be had as is prescribed in this article for the settlement of disagreements between the highway officers of different towns. All highways heretofore laid out upon the line between any two towns or between a town and a city or an incorporated village shall be divided and allotted or redivided and reallotted, recorded and kept in repair, in the manner above directed. Kevised from 1 E. S., ch. 16, tit. 1, §§ 4, 73-76. Amd. L. 1894, ch. 727; L. 1895, ch. 181. For another scheme for joint maintenance, see L. 1870, ch. 311, page 204, post. As to general provisions for laying out a highway, see the preceding sections of this chapter and notes thereunder; also the following sections of this chapter and notes thereunder. Repair of highways generally, §§ 4, 20, ante. For form of allotment, etc., under this section, see No. 93, post. Where a road lying upon a town line has been apportioned by the commissioners of the towns, the jurisdiction over the several parts is thereafter in the respective commissioners of highways. TifEt et al. v. Alley, 3 Thomp. & Cook, 784. A town is not liable for injuries sustained by reason of defects in the portion which was allotted to the other town. Where there is an omission to apportion such highway, a previous apportionment will remain in force. Jones v. City of Utica, 16 Hun, 441. It is not necessary to record an apportionment to give it validity. Jones V. City of tltica, supra. The division is made both for the purpose of opening and of main- taining the road, but has no reference to bridges, they not being included in the term " roads." Day v. i)ay, 94 N. Y., 153; and see § 130 et seg, post; contra, TifEt et al. v. Alley, supra. §98. Final determination, liow carried out.— The final determination of commissioners appointed by any court, relating to the laying out, altering or discontinuing a highway, and all 108 The Highway Law. orders and other papers filed or entered in the proceedings, or certified copies thereof from the court where such determination, order and papers are filed and entered, shall be forthwith filed and recorded in the town clerk's office of the town where the highway is located; and every such decision shall be carried out by the commissioners of highways of the town, the same as if they had made an order to that effect. New in form; see 1 E. S., ch. 16, tit. 1, art. 4, § 83; L. 1880, ch. 114, § 3. For general provisions as to determination of commissioners, see §§ 86-88, ante. As to survey and order laying out the highway by commissioners, see § 81, ante. Form No. 84, post. General provisions for filing papers, § 150, post. Where the original record of the proceedings is void, the laying out of the highway is void, and jurisdiction must appear either on the fa«e of the papers or by proof aliunde. Miller v. Brown, 56 N. Y., 383. An omission to file the petition with the other papers does not affect the regularity of the proceedings. Commissioners of Highways of Bush- vyick V. Meserole, 30 Wend., 322. But its filing may be compelled by attachment against the commis- sioner who has possession of it. The People v. Vail, 1 Cow., 589; 2 Cow., 623. The laying out of a highway after the determination of the jury will not be enforced by mandamus, where it appears that the public will derive no benefit from it. People ex rel. Ashley v. Comrs. of Highways, 42 Hun, 463. Nor where notice has not been given as required by section 85, see notes to that section, ante. Nor where it appears that the proceedings were void because of juris- dictional defects. People ex rel. Johnson v. Whitney's Point, 33 Hun, 508; affd., 102 N. Y., 81; and see People ex rel. Allen v. Smith, 37 App. Div., 348, under § 85, ante. Mandamus may be instituted to compel the commissioners to open a road as laid out. The People v. Champion, 16 Johns., 61. But the fact that the damages have not been released or assessed is a good defense. People ex rel. Clark v. The Comrs. of Highways of Town of Reading, 1 Thomp. & Cook, 193. But see Case v. Thompson, 6 Wend., 634, holding that the assessment or payment of damages is not a condition precedent to opening the road. And the right to have damages assessed may be waived; as to what constitutes waiver. Chapman v. Gates, 46 Barb., 313. An order discontinuing part of a highway previously ordered opened, the later order being made before the highway was actually opened, The Highway Law. 109 does not relieve the commissioners from opening that portion of the highway to which the order of discontinuance had no reference. Eai parte Sanders, 4 Cow., 544. But see Matter of Opening of Beck St. and cases following in notes to § 86, ante, as to the validity of an order discontinuing an unopened road. The commissioner of highways has no part or duty in the proceedings to lay out a highway until it becomes his duty under this section to lay it out, after which he has general charge of it. People ex rel. D., L. & W. E. Co. V. County Court, 93 Hun, 13 ; but see People ex rel. Bevins v. Supervisors of Warren, 82 Hun, 298, 302; and the provision of § 83, ante, for notice to the commissioners of highways of the application to the County Court for commissioners. § 99. Highways abandoned. — Every higliway tHat shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway. The commis- sioners of highways shall file, and cause to be recorded in the town clerk's office of the town, written description, signed by them, of each highway so abandoned, and the same shall thereupon be discontinued. Revised from 1 E. S., ch. 16, tit. 1, art. 4, § 99; L. 1853, ch. 174, § 15; L. 1861, ch. 311, §§ 1, 2. Amd. L. 1899, ch. 633. For form of description required by this section, see No. 95, post. Discontinuance of highways in towns which expended upwards of $300,000 in five years. L. 1S95, ch. 611; L. 1896, ch. 464; L. 1903, ch. 331. It was held that the former analogous statute, which this section supersedes, applied to all highways, regardless of their antiquity. Town- send V. Bishop, 61 App. Div., 18; and see Amsbey v. Hinds, 48 N. Y., 57. Abandonment can be effected under this section only where facts are undisputed. Obstructing by gates does not work abandonment. People ex rel. De Groat v. Marlett, 41 Misc., 151. A highwaj"^ will not be abandoned for non-user if worked at all, even though it be worked but little and poorly. Marble v. Whitney, 28 N. Y., 297; McCarthy v. Whalen, 19 Hun, 503. Highways which have been duly laid out cease to be highways if not opened and worked within six years, and if opened and worked in part, cease to be highways, except as to the part opened and worked, and 110 The Highway Law. highways which have for six years been impassable for teams cease to be highways. Horey v. Village of Haverstraw, 124 N. Y., 273; City of Buffalo V. D., L. & W. K. K. Co., 68 App. Div., 488; City of Buffalo v. Hoffeld, 6 Misc., 197; Mangam v. Village of Sing Sing, 26 App. Div., 464; affd., 164 N. Y., 560; People ex rel. City of Yonkers v. N. Y. C. & H. E. E. E. Co., 69 Hun, 166; Woodruff v. Paddock, 56 Hun, 2SS; affd., 130 N. Y., 618. Contra, as to being passable for teams. Wakeman v. Wilbur, 147 N. Y., 657, 663. And this is true, even though the obstruction which caused the original abandonment was made by a, trespasser, if the obstruction was total. City of Buffalo v. D., L. & W. E. E. Co. and Horey v. Village of Haver- straw, supra. But an owner of land abutting upon a street cannot acquire title to any portion of the highway by adverse possession not based upon a written instrument, unless he encloses the land or customarily cultivates it, and such cultivation must be notorious, hostile and exclusive. Halle- ran V. Bell Telephone Co., 64 App. Div., 41. But compulsory abandonment of a highway, when no new highway is acquired, is not conclusive evidence of an intention to abandon. Free- holders V. Towns Glen and Florida, 20 N. Y. S. E., 394. It is not necessary to file the description of the abandoned highway prescribed by the statute in order to have the abandonment become effective. Eaynor v. Syracuse University, 35 Misc., 83, 93. It seems that there may be an abandonment of a lateral portion of a highway by the shifting of the highway to one side of its original locar tion. Mangam v. Village of Sing Sing, 26 App. Div., 464; affd. on opinion below, 164 N. Y., 560. The doctrine of abandonment of highways by non-user applies to the streets of a village incorporated under the general act. Mangam v. Village of Sing Sing, supra; Horey v. Village of Haverstraw, supra. And it also applies to the streets of a city where an easement only was taken. Matter of Fox St., 54 App. Div., 479; City of Buffalo v. D., L. & W. E. E. Co., 68 App. Div., 48S; City of Buffalo v. Hoffeld, 6 Misc., 197; Eaynor v. Syracuse University, 35 Misc., 83, 92. But see, contra, where a fee was taken, Vanderbeck v. City of Rochester, 46 Hun, 87; Woodruff v. Paddock, 56 Hun, 288; 130 N. Y., 618. This section applies to highways by dedication. People ex rel. Yonkers V. N. Y. C. & H. E. E. E. Co., 69 Hun, 166. In cases of abandonment of highways the land between an abutter's line and the center of the highway reverts to the abutter, where an ease- ment only was taken. Mangam v. Village of Sing Sing, 11 App. Div., 313. A mere failure to work a road for six years will not always work an abandonment; and a highway once laid out is presumed to continue to exist until the contrary appears. Beckwith f. Whalen, 65 N. Y., 322; Woodruff V. Paddock, supra. The Highway Law. Ill And ■will continue to exist until discontinued according to law. Drigga V. Phillips, 103 N. Y., 77; City of Cohoes v. D. & H. C. Co., 134 N. Y., 397. As to the suspension of the running of the six years period by a delayed acceptance of a dedicated road, see Bridges v. WyckofE et al., 67 N. Y., 130, holding that such delay suspends the running of the statute. A six-year non-user is overcome by a subsequent long-continued user. Amsbey v. Hinds, 40 Barb., 626; afEd., 48 N. Y., 57. The burden of proving non-user of a once dedicated street is upon the one alleging it. McVee v. City of Watertown, 92 Hun, 306; Horey T. Village of Haverstraw, 134 N. Y., 373. A formal discontinuance of a private vyay which has been worked as a highway is a nullity. Miller v. Garloek, 8 Barb., 153. Where the commissioners attempt to lay out as an old road a highway that has been abandoned for over twenty years, the owner of the fee of the road can n;aintain an action to cancel the order and survey. A mere grass-grown cul de sac of twenty years' standing, partially barred with posts and having no appearance of a highway, may be deemed abandoned. Kiley v. Brodie, 22 Misc., 374. Non-user of a highway for forty years will work an abandonment of it, despite the fact that a public pump and reservoir enclosed by a chain occupies a part of the unused portion. Mangam v. Village of Sing Sing, 11 App. Div., 212; s. c, 26 App. Biv., 464; afEd., 164 N. Y., 560. And where a highway is abandoned, the land reverts to its former condition, and the grantee of the abutting lands succeeds to the original owner's title and right to possession. Haberman v. Baker, 128 N. Y., 253. But where the abutting grantee took title to the edge of the highway only, or where the fee of the street is in the municipaUty, there would be no reversion to him. Haberman v. Baker, supra. The interest of the public in lands used as a highway cannot be taken from the public and donated to the former owners of the fee. The People V. Commissioners of Highways of the Town of Palatine, 53 Barb., 70. § 100. Highways by use. — All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods. Eevised from 1 E. S., ch. 16, tit. 1, art. 4, §§ 100, 101. As to duty of commissioners to describe and record highways by use, see § 4, subd. 2, ante. Order to open highway. No. 96, post. This section does not change the law as to what are highways by use. People ex. rel. Cunningham v. Osborn, 84 Hun, 441. Use of land for private road for 20 years does not make it a highway by use. Culver v. City of Yonkers, 80 App. Div., 309. 112 The Highway Law. Before lands can become a highway by prescription they must have been used by the general public, as a highway, under a claim of right, without interruption or a substantial change, and they must have been kept in repair, taken in charge of and adopted by the public authorities, so that the town has become responsible for their condition and for Injuries to travelers resulting from the negligence of the highway officers, and so that persons obstructing the same may be subject to a fine under the statute. Eiley v. Brodie, 22 Misc., 374, 3T8 (citing many cases). The use must be by the public as a highway for twenty years and with the knowledge, but without the consent, of the ovsner. City of Cohoes V. D. & H. C. Co., 134 N. Y., 397; People ex rel. Cunningham v. Osborn, 84 Hun, 441; but see Spier et al. v. Town of New Utrecht, 121 N. Y., 420, 430, holding that permissive user may establish a highway if continued for twenty years. And must be under claim of right, and without interruption or sub- stantial change, and the authorities must have taken charge of the highway and kept it in repair. Eiley v. Brodie, supra; Spier et al. v. Town of New Utrecht, 121 N. Y., 420; City of Buffalo v. D., L. & W. R. E. Co., 68 App. Div., 488; People v. Underbill et al., 144 N. Y., 316. A highway by prescription may be acquired even though the owner be under a disability, as a lunatic, infant, etc., while the prescriptive rights are accruing. Devenbeck v. Lambert, 44 Barb., 596. But miscellaneous trespasses by the public will not give rise to a high- way by use. Matter of Hand St., 52 Hun, 206; 55 Hun, 132; and see opinion of Landon, J., in People v. Livingston, 27 Hun, 105. Nor will permissive travel give rise to a highway by prescription. Hamilton v. Village of Owego, 42 App. Div., 312. A private way does not become a public highway from the fact that it is worked as such. Miller v. Garlock, 8 Barb., 153; see Matter of Freeholders of Montezuma, 38 N. Y. S. R., 970; s. i;., 14 N. Y. Supp., 845. A private roadway, never laid out, repaired or recorded by the authorities, does not become a highway by public travel, and section 100 of the Highway Law does not change this rule. Harriman v. Howe, 78 Hun, 280; affd., 155 N. Y., 683; and see Palmer v. Palmer, 150 N. Y., 139; Spier et al. v. Town of New Utrecht, 121 N. Y., 420. A town is liable for injuries caused by defects in a highway by use, that being one of the tests as to the existence of such a highway. Ivory V. Town of Deerpark, 116 N. Y., 476; Eiley v. Brodie, 22 Misc., 374, supra. Mere threats of interrupting the user by the public are of no avail to stop the acquiring of prescriptive rights; in order to be effective there must be an actual interruption. Devenbeck v. Lambert, 44 Barb., 576. A failure to record a highway, which has had the necessary user, does not prevent its becoming a public highway. Lewis v. N. Y., L. E. & W. R. E. Co., 123 N. Y., 496; Galatin v. Gardner, 7 Johns., 106. The Highway Law. 113 Where a street is plotted on a map made by the owner of lands, its acceptance by the authorities may be shown by long-continued user. Matter of Hunter, 28 Misc., 314; afEd., 163 N. Y., 543; s. c, 164 N. Y., 365. It is the duty of the commissioners to cause old roads to be opened to a width of at least two rods, and the order to so open them may be made without any preliminary proceedings whatever. Snyder v. Plass, 28 N. Y., 465; Alpaugh v. Bennett, 59 Hun, 45; Snyder v. Trump- bour, 38 N. Y., 355. § 101. Fences to be removed. — Whenever a highway shall have been laid out through any inclosed, cultivated or improved lands, in conformity to the provisions of this chapter, the com- missioners of highways shall give to the owner or occupant of the land through which such highway shall have been laid, sixty days notice in writing to remove his fences; if such owner shall not remove his fences within the sixty days, the commissioners shall cause them to be removed, and shall direct the highway to be opened and worked. Eevised from 1 E. S., ch. 16, tit. 1, art. 4, §§ 96, 97, and id., art. 5, § 109. For provisions as to obstructions and encroachments, see §§ 104, 105, post. For form of notice to remove fences, see No. 97, post. Failure to give notice to remove fences is fatal to an action for obstructing a highway with them, and the giving of the notice must be proven and will not be presumed; but the objection of want of notice may not be raised for the first time upon appeal. Cooper v. Bean, 5 Lans., 318; Case v. Thompson, 6 Wend., 634; Drake v. Sogers, 3 Hill, 604. §102. Penalty for falling trees. — if any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by the order and consent of the occupant, the person so offending shall forfeit to such occupant, the sum of one dollar for every tree so fallen, and the like sum for every day the same shall remain in the highway, river or stream. Eevised from 1 E. S., ch. 16, tit. 1, art. 5, §§ 111, 112. For penal provision for injury to trees, see Penal Code, § 639, subd. 5; § 640, subds. 1, 2, 3. For provisions as to ownership of trees in highways, see § 156, post. s 114 The Highway Law. § 103. Fallen trees to be removed.— If any tree shall fall, or be fallen by any person from any inclosed land into any high- way, any person may give notice to the occupant of the land from which the tree shall have fallen, to remove the same within two days; if such tree shall not be removed within that time, but shall continue in the highway, the occupant of the land shall forfeit the sum of fifty cents for every day thereafter until the tree shall be removed. Revised from 1 R. S., ch. 16, tit. 1, art. 5, § 110. For provisions as to ownership of trees in highvyays, see § 156, post. For provisions as to obstructions and encroachments in highvyays, see §§ 104, 105, post. All penalties to be recovered by the commissioners of highvrays in the name of the tovyn, § 164, post. For form of notice to remove fallen trees, see No. 98, post. § 104. Penalty for obstruction or encroachment. — Whoever flhall obstruct or encroach upon any highway, or shall unlawfully fill up or place any obstruction in any ditch for draining the water from any highway, shall forfeit for every such offense the sum of five dollars. Revised from 1 E. S., ch. 16, tit. 1, art. 5, §| 102, 112. For injuries to highways generally, see § 15, ante. For duty of overseer to open obstructed highways, see § 21, ante. For duty of commissioners to open obstructed highways, see S 105, post. For recovery of penalties generally, see § 164, post. Penal provisions for interference with or obstruction of a highway and for placing injurious substances on roads, etc., Penal Code, §§ 385- 387, 654a. For rights of electric light and power companies to erect poles in highways, see Trans. Corp. Law (L. 1890, ch. 566), § 61, and cases below. For rights of telephone and telegraph companies to erect poles in •highways, see Trans. Corp. Law (L. 1890, ch. 566), § 102, and cases under this section, post. As to rights of railroad companies to cross highways vidth their tracks, and their duty to restore the highway to its original condition, see Railroad Law (L. 1890, ch. 565), § 11, and L. 1835, ch. 300, page 188, post. A certain amount of obstruction of a highway will be allowed, but no obstruction will be allowed which is not reasonably necessary for the transaction of business, nor will any obstruction be allowed which unreasonably interferes with the rights of the public. Tinker v. N. Y., .Ontario & Western E. Co., 157 N. Y., 312; Flynn v. Taylor, 127 N. Y., 596. The Highway Law. 115 Temporary obstruction of village sidewalks by teams has been held allowable. Fisher v. Village of Cambridge, 57 Hun, 296; Hand v. Klinker, 7 N. Y. S. E., 21; 54 Super. Ct., 433. And the temporary obstruction of sidewalks by the use of skids to aid in removing merchandise from a wagon to a building has been held allowable. Welsh v. Wilson, 101 N. Y., 252. But where these obstructions were so frequent and long continued as to constitute an unreasonable interruption of the public use they were held not allowable. Callanan et al. v. Oilman, 107 N. Y., 360; iPlynn v. Taylor, 53 Hun, 167; afEd., 127 N. Y., 596. An abutter who causes an unreasonable obstruction of a highway must keep his premises at the point where one seeking to pass around the obstruction would come upon them in a reasonably safe condition for such passage. Linehan v. Western El. Co., 29 App. Div., 462. A ditch may be an obstruction in a highway, and obstructions are nuisances. Harlow v. Humiston, 6 Cow., 189; Lansing v. Smith, 8 Cow., 146; Dygert v. Schenck, 23 Wend., 446. See, also. The People v. Lambier, 5 Den., 9; liogers v. Rogers, 14 Wend., 131; Davis v. The Mayor, etc., of New York, 14 N. Y., 506; 8 Super. Ct., 459; The People v. Sturtevant, 9 N. Y., 263; Peckham v. Henderson, 27 Barb., 207. But an encroachment \ipon a highway is not a nuisance, unless it annoys the public. Griffith v. McCullum, 46 Barb., 561; Howard v. Bobbins, 1 Lans., 63. But see Village of Hempstead v. Ball El. Light Co., 9 App. Div., 48. As to the distinction between obstructions and encroachments, see Devenbeck v. Lambert, 44 Barb., 596. One who places an obstruction in a, ditch which carries water from a highway onto his land, is within the statute and liable to the penalty where the ditch was so constructed to protect the highway and does him no material damage. Bailey v. Frost, 4 Week. Dig., 269. But where the ditch is so constructed as to materially increase or change the natural flow of surface waters to the detriment of the abutter, he may turn back the increased flow. Thompson v. Allen, 7 Lans., 459. There may be an encroachment upon a highway which is such by use only. Fowler v. Mott, 19 Barb., 204; Town of West Union v. Eichey, 64 App. Div., 156. But where a highway is such by use only a building is not an encroach- ment, unless it is on the land which had been actually used as a high- way. Flood V. Van Wormer, 70 Hun, 415; 147 N. Y., 284. Since mere dedication without acceptance does not make a highway, there can be no obstruction of a highway which has been merely dedicated and not accepted and laid out, nor used for twenty years. And a single act of repair may not amount to an acceptance. The Trustees of Jordan v. Otis, 37 Barb., 50. lie The Highway Law. But if accepted, it becomes a highway, whether ever laid out or not, and the person obstructing it is liable for the penalty. Town of Corning V. Head, 86 Hun, 12. The statute as to obstructions and encroachments has been held to a.pply to piers in New York city. People v. Macy, 62 How. Pr., 65. After a great lapse of time, and in the absence of positive proof, the presumption is that a building is not an encroachment. Mogg v. West, 8 Week. Dig., 105. The Legislature has power to authorize what would otherwise be obstructions and encroachments, and it may delegate that power to a municipality. Hoey v. Gilroy et al., 129 N. Y., 132; Barhite v. Home Telephone Co., 50 App. Div., 25; City of Eochester v. Bell Telephone Co., 52 App. Div., 6. But this license to obstruct or encroach upon highways may be revoked or modified when the public interest requires it. A. R. T. Co. v. Hess et al., 125 N. Y., 641. The authorization of a news stand upon a street is within this power. People ex rel. Simon v. Mayor, 20 Misc., 189. But a hack stand may not occupy a public street. McCafErey v. Smith, 41 Hun, 117; People ex rel. Thompson v. Brookfield, 6 App. Div., 398; s. c, post. The erection of poles and the stringing of wires along a highway for the purpose of lighting it where necessary, pursuant to a contract with the local authorities, is a public use and imposes no additional burden upon the fee. Palmer v. Larchmont Electric Co., 158 N. Y., 231. And the fact that the same poles carry wires used for private lighting does not authorize their removal, though it may warrant enjoining the use for private purposes. Johnson v. Thompson-Houston Electric Co., 54 Hun, 469. But trees may not be trimmed to clear the wires, if there exists any feasible way of avoiding so doing. Van Sicklen v. Jamaica Electric Light Co., 45 App. Div., 1. A company's rights under a general permission to erect poles for electric lighting have been protected by injunction. Electric Construction Co. V. HefEernan et al., 34 N. Y. S. R., 436; 12 N. Y. Supp., 336; Con- sumers' Gas Co. V. Congress Spring Co., 61 Hun, 133. But where such a company abandons its contract with the village for lighting the village, the village may compel the removal of the poles. Village of Hempstead v. Ball Electric Co., 9 App. Div., 48. A city may be liable to an abutter for the obstruction of a highway. St. John V. Mayor, etc.. New York, 6 Duer, 315; 3 Bosw., 483. Where the poles incommode the public, and are unnecessary for the company's business, they are a nuisance, and their continuance may be restrained. People v. Metropolitan Telephone, etc., Co., 11 Abb. N. C, 304; 64 How. Pr., 66; and see A. R. T. Co. v. Hess et al., 125 N. Y., 641. The Highway Law. 117 Under § 103 of the Transportation Corporation Law, telephone and telegraph companies have a right to set their poles and string their wires along public highways without first obtaining the consent of local authorities, but subject to their reasonable police regulations. Barhite V. Home Telephone Co., 50 App. Div., 25; City of Rochester v. Bell Telephone Co., 52 App. Div., 6. Where a highway is discontinued an existing obstruction ceases to be a nuisance. Drake v. Rogers, 3 Hill, 604; and see Briggs v. Bowen, 60 N. Y., 454. The fact that an abutter has not been paid damages sustained by him in laying out a highway will not excuse his obstruction of it. Chapman et al. v. Gates, 54 N. Y., 133. But an unopened highway cannot be obstructed. Little v. Denn, 34 N. Y., 453. It was formerly held that no obstruction made by an adjoining owner could deprive the commissioners of highways of jurisdiction over that part of the highway. Driggs v. Philips, 103 N. Y., 77; WoodrufE V. Paddock, 56 Hun, 288, 130 N. Y., 618; Mangam v. Village of Sing Sing, 26 App. Div., 464; afEd., 164 iN. Y., 560. But see Horey v. Village of Haverstraw, 124 N. Y., 373, and City of BufCalo v. D., L. & W. R. R. Co., «8 App. Div., 488. One may construct a driveway from the traveled portion of the high- way to his own premises, and if he does it in such a manner as not to interfere with the public easement over the improved and customarily used portion of the highway, it is not a nuisance such as a private person may abate; only an actual obstruction may be so abated. Strick- land V. Woolworth, 3 Thomp. & Cook, 286. The fact that an encroachment was not so great as to actually render "travel impossible would not alone render the commissioners liable for "trespass in removing it. Van Wyck v. Lent, 33 Hun, 301; Hathaway v. Jenks, 67 Hun, 289. One who has occasion to leave a load in the highway must remove it with promptness, and if he leaves it there an unreasonable length of time, it becomes a nuisance and a highway officer may remove it. Northrop v. Burrows, 10 Abb. Pr., 365. One cannot legally carry on any part of his business in a public ^highway to the hindrance of the public; nor may he carry it on in such a manner as to cause large numbers of wagons to congregate in front of his premises to the hindrance of public travel. The People v. Cun- ningham, 1 Den., 534. No notice to remove an obstruction is necessary to the maintenance of action to recover the penalty provided by this section. Town of Corning v. Head, 86 Hun, 13; and see Moore v. Village of Fairport, 11 Misc., 146. The primary use of a highway is for transportation, and any obstruc- -.tion or encroachment which interferes with such use is a nuisance. 118 The Highway Law. But temporary and reasonable use of a highway by hackmen or private carriages is not a nuisance. People ex rel. Thompson v. Brookfield, 6 App. Div., 398. Works of art, as, for example, a soldiers' monument, are not an encroachment or obstruction upon a highway, if not a hindrance to its use; and their erection is not a trespass upon the rights of the owner of the fee. Tompkins v. Hodgson, 2 Hun, 146; 4 Thomp. & Cook, 435. Where a highway is for any reason temporarily in such a founderoua or obstructed condition that it cannot be traveled without reasonable fear of harm, and there is no feasible way of going around by other roads, and the defective or obstructed condition of the highway cannot be remedied by a reasonable effort on the part of the traveler, he may go upon the abutting lands to pass around the defective or obstructed portion, but he must do as little damage as may be, and keep as near as practicable to the highway. Holmes v. Seely, 19 Wend., 507; Williams v. SafEord, 7 Barb., 309; Newkirk v. Sabler, Barb., 652; Elliot, Roads and Streets (2d ed.), §§ 12-15; 15 Am. & Eng. Enc. L. (2d ed.), 506. It was held in White v. Wiley, 36 N. Y. S. E., 102; 13 N. Y. Supp., 205, that nothing short of absolute necessity would justify going upon an abutter's land, but this is evidently not in accord with the other authorities. But this right of extra viam seems not to exist as to a private road or way. Matter of Burdick, 27 Misc., 298;. Holmes v. Seely, and cases following, supra. Even though the abutter rendered the way impassable. Williams v. SafEord, supra. But it is said that the right of extra viam does exist as to a, private \vay 1)y necessity. Holmes v. Seely, supra; but see, contra, Williams v. SafEord, supra. Shade trees planted in a highway before the enactment of the Highway Law, held not an encroachment or obstruction. Town of Wheatfield v. Shasley, 23 Misc., 100; Edsall v. Howell, 86 Hun, 424. See many additional cases imder § 105, post. § 105. How removed and liability for not removing.— The c'diinriissioiier of highways shall serve upon the owner or occu- pant of lands, adjoining that part of a highway within their town, in which any obstruction or encroachment may exist, including any fences, brush, shrubbery or other obstruction causing the drifting of snow, and branches of trees overhanging the traveled portion of the highway so as to interfere in any manner with persons riding or driving over said highway, a notice specify- ing the extent and location of such obstruction or encroach- ment and directing such owner or occupant to remove the same within a specified time not more than sixty days after the serxdce of the notice. If such owner or occupant shall neglect or refuse The Highway Law. 119 to remove sucli obstruction or encroachment within such time, he shall forfeit to the town the sum of twenty-five dollars; and the commissioners may remove such obstructions or encroachments at the expense of the town which may be recovered by action of such o^vner or occupant, or the said commissioner may bring an action in any court of competent jurisdiction to compel such owner or occupant to remove such obstruction or encroachment. Actions by commissioners of highways as in this section provided, shall be in the name of the town. Kevised from 1 K. S., eh. 16, tit. 1, art. 5, §§ 103-108; L. 1840, ch. 300; L. 1862, ch. 243, and L. 1878, ch. 245, §§ 1, 2. Amd. 1.. 1904, ch. 478, § 7; in efEect April 28, 1904. Actions for injuries to highways, § 15, ante. Liability of towns for defective highways, § 16, ante. Kecovery of penalties generally, § 164, post. Form of order and notice required by this section, Nos. 99-101, post. Obstructing highway punishable as a misderaeanor, Penal Code, §§ 385- 387. Flynn v. Taylor, 127 N. Y., 596. As to the scope of this section generally, see Town of Wheatfleld v. Shasley, 23 Misc., 100. This section modifies, in several essential particulars, the former stat- ute. It simply requires that the owner or occupant have an opportunity, after specific notice, to remove the obstruction. Moore v. Village of Fairport, 11 Misc., 146. Fifteen days' notice may be sufficient. Evidence sufficient to show existence of road considered. Town of Smithtown v. Ely, 75 App. Div., 309. An abutter may go into a highway to remove an obstruction which throws large quantities of water upon his land. Comr. of Highways v. Bates, 26 Week. Dig., 33. So, also, may h« remove any encroachment or obstruction which injures him specially. Griffith v. McCullum, 46 Barb., 561; and see Halleran v. Bell Telephone Co. and Dominick v. Hill, 6 N. Y. S. E., 329; 86 Week. Dig., 239, below. Trespass lies by the owner of the fee of a highway against a person who exclusively appropriates the highway. Cortelyou v. Van Brundt, 3 Johns., 357; Jackson v. Hathaway, 15 Johns., 447; Matter of Seven- teenth St., 1 Wend., 2«2; Gidney v. Earl, 12 Wend., 98; and see Halleran V. Bell Telephone Co., 64 App. Div., 41. And where the trespasses are continuous the owner may invoke the aid of equity to restrain them. Coatsworth v. Lehigh Valley K. Co., 156 N. Y., 451. Where the obstruction injures all alike and none specially a private person may not compel its removal, but where one is specially injured he may compel its removal. Halleran v. Bell Telephone Co., 64 App. Div., 41. 120 The Highway Law. An abutter cannot grant the exclusive use of the highway opposite his premises to any person, as, for example, to the proprietor of a hack stand. Deiz v. Lamb, 29 Supr. Ct. (6 Kobt.), 537. In addition to the liability to the municipality of one who obstructs or encroaches upon a highway, there is another liability which is incurred, and that is the liability to any one who is damaged by such obstruction or encroachment. This liability is scarcely within the scope of a work of this kind, but a reference to the following cases will readily settle its nature and limitations: Wakeman v. Wilbur, 147 N. Y., 657; Houghtaling v. Shelley, 51 Hun, 598 ; Callanan et al. v. Gilman, 107 N. Y., 360; Anderson v. Young, 66 Hun, 240; Congreve v. Smith, 18 N. Y., 79; Mairs v. Manhattan Eeal Estate Association, 47 Super. Ct., 31; affd., 89 N. Y., 498; De Witt v. Van behoyk, 35 Hun, 103; afEd., 110 N. Y., 7; Wright V. Saunders, 65 Barb., 214; affd., 3 Keyes, 323; Clifford v. Dam, 81 N. Y., 52 (this case is distinguished in Williams v. Hynes, 55 Stiper. Ct., 86; 18 N. Y. S. K., 316); Flynn v. Taylor, 53 Hun, 167; affd., 127 N. Y., 596. A private individual may bring an action for the obstruction of, injury to, or encroachment upon a highway, which causes him special injury. Electric Construction Co. v. Heffernan et al., 34 N. Y. S. R., 436; 12 N. Y. Supp., 336; Van Brundt v. Ahearn, 13 Hun, 388; Hood t. Smith et al., 5 Week. Dig., 117; Ninth Ave. R. R. Co. v. N. Y. Elevated R. Co., 3 Abb. N. C, 347; 7 Daly, 174; Wilburn v. Fowler, 27 Hun, 568, and see Houghtaling V. Shelley and cases following in notes to this section, ante. As to obstructions and encroachments upon tow-paths of canals, see Conklin v. Phoenix Mills of Seneca Falls, 62 Barb., 299. It is held that permission from the authorities to obstruct a highway will not prevent an action by an individual for his damages. Mairs et al. V. Manhattan Real Estate Association, 89 N. Y., 498; Masterson v. Short, 30 Super. Ct. (7 Robt.), 299; 35 How. Pr., 169. The commissioners of highways may and ought to remove a building which is placed upon a highway and obstructs public travel. Cook v. Harris et al., 61 N. Y., 448. It seems that great particularity in giving the notice required by this section is not necessary. An informal notice will protect the commis- sioners from liability for trespass. Hathaway v. Jenks, 67 Hun, 289; Kline v. Hibbard, 80 Hun, 50; affd., 155 N. Y., 679. But the notice should state particularly the width of the road originally intended and the location and extent of the obstruction. Spicer v. Seade, 9 Johns., 359; Cook v. Covil, 18 Hun, 288; Mott v. Comrs., etc., of Rush, 2 Hill, 472. And it must be sufficiently definite to enable the party upon whom it is served to go upon the ground to fix the place and extent of the encroachment with certainty and without emibarrassment; and describ- ing the encroachment by reference to a map in the possession of the commissioners of highways is not sufficient, even though inspection The Highway Law. 121 of the map is ofEered. Town of Sardinia v. Butler, 149 N. Y., 505; but see Town of Palatine v. N. Y. C. & H. K. K. R. Co., 22 App. Div., 181; also James v. Sammis et al., 132 N. Y., 239, holding that notice and descrip- tion of encroachment may be in separate instruments if annexed to each other. The trustees of a village and the commissioners of highways by the charter have the same power to compel the removal of obstructions nnd encroachments as the commissioners of highways in towns. Village of Hempstead v. Ball Electric Co., 9 App. Div., 48. Obstructions in a ditch causing a wet place in a highway may be sum- marily removed. Dominiek v. Hill, 6 N. Y. S. E., 329, 26 Week. Dig., 239. Commissioners of highways may remove obstructions from highways which are such by use only. Town of West Union v. Richey, 64 App. Div., 156; People ex rel. Butler v. Hunting, 39 Hun, 452; James v. Sammis et al., 132 N. Y., 239; Town of Corning v. Head, 86 Hun, 12; Bayles v. Roe, 1 Silv. Supr. Ct., 356; 5 N. Y. Supp., 279, and see Marvin v. Parrdee, 64 Barb., 353. And the penalty may be recovered in such cases as though the high- way were regularly laid out. Town of West Union v. Richey, 64 App. Div., 156. As to what are encroachments in highways by use, see Flood v. Van Wormer, 70 Hun, 415, affd., 147 N. Y., 284, holding that a building is not an encroachment upon a highway by use, unless it is upon the land actually used for highway purposes. And see Kerr v. Hammer, 39 N. Y. S. R., 70S; 15 N. Y. Supp., 605. But mandamus will not lie to compel the removal of hackmen and private carriages which temporarily and in a reasonable manner occupy a highway. People ex rel. Thompson v. Brookfield, 6 App. Div., 398. But see People ex rel. Van Norder v. Sewer Com., 90 App. Div., 555. The construction of a plank-road upon a highway does not prevent the commissioners from removing obstructions and encroachments. Walker v. Caywood et al., 31 N. Y., 51. The complaint in an action for the removal of obstructions from a certain " street and avenue " was properly dismissed for failure to show that the street and avenue were highways, or that the plaintiff had any private interest therein. Jones v. Doherty, 17 App. Div., 628. The penalty provided by this section is not incurred until there is a failure to remove after valid notice. Fleet v. Youngs, 7 Wend., 291; Town of Sardinia v. Butler, 149 N. Y., 505; see Town of Corning V. Head, 86 Hun, 12. An objection that the assessment for the expense of the highway was not properly made is not admissible in defense of an action for the obstruction of a highway. Cooper v. Bean, 5 Lans., 318. And the preliminary steps taken in opening a highway need not be shown by the plaintiff. The record of the highway is sufficient. Sage V. Barnes, 9 Johns., 365; but see Marvin v. Pardee, 64 Barb., 353, below. 122 The Highway Law. And jurisdiction will be presumed where an order laying out the highway is admitted without objection. Cooper v. Bean, 5 Lans., 318. And even the record need not be produced where it is shown that the road has been used and worlced and regarded as a public highway for fifteen years before the obstruction in question. Chapman v. Gates, 46 Barb., 313; affd., 54 N. Y., 132. But an abutter may, in his action for damages for the removal of his fences along the highway, show that an alleged order, laying out a highway in such a way that his fences were encroachments, was made ivithout authority. Marvin v. Pardee, 64 Barb., 353. This decision is said by Elliott (Roads and Streets, 2d ed., page 404n) to be erroneous and to violate the rule that one who is not an abutter cannot defend a prosecution for the obstruction of a highway by attacking the regu- larity of the proceedings to lay out the highway where jurisdiction is shown and an order in due form is produced. But it would seem that this case is noi such a one as he mentions, because this action was brought by an ahutter and it would seem that the authorities were assuming to act beyond their jurisdiction. For a case along the line of the doctrine which the learned author lays down, see Cooper v. Bean, 5 Lans., 318, supra. It would seem that two towns may not join in an action to recover a penalty or forfeiture for an encroachment upon a highway built upon the line of the towms. Bradley v. Blair, 17 Barb., 480. And compare Palmer v. Plank-Eoad Co., 11 N. Y., 376. Where a complaint alleges that the highway in question is one by use, a recovery may still be had where the proof snows that the high- way is one of record. Town of Sardinia v. Butler, 78 Hun, 527; reversed on another point, 149 N. Y., 505. A general plea of title to the premises, coupled with a denial of the existence of the highway, is sufBcient to allow the defendant to question the existence of the highway or the fact of an obstruction. Little v. Denn, 34 N. Y., 452. This case contains an elaborate discussion of the procedure in this kind of actions. And it has also been held that a general denial alone is sufficient to allow the defendant to controvert either user as a highway or the fact of the obstruction. Saunders v. Townsend, 26 Hun, 308. And it has been held that where the defendant does not plead title to the premises, the controversy is limited to the questions of obstruc- tion or encroachment and user as a highway. Towti of West Union v. Richey, 64 App. Div., 156. An injunction will lie to restrain the summary removal of a building alleged to be an encroachment upon a highway where its removal will cause irreparable injury. Flood v. Van Wormer, 70 Hun, 415; afEd., 147 N. Y., 284. The Highway Law. 123 But- the contrary was iield in a case where the commissioners had made an order adjudg-ing a fence to be an encroachment. Hyatt v. Bates, 40 N. Y., 164. An action will noc he in equity to prevent or remove an obstruction of a highway. Eozell et al. v. Andrews, 103 N. Y., 150; but see, contra, City of Niagara Falls v. N. Y. C. & H. K. E. K. Co., 168 N. Y., 610. A railroad company may be compelled to surrender its possession of an abandoned turnpike. Town of Palatine v. N. Y. C. & H. R. R. R. Co., Z2 App. Div., 181. It is optional with the commissioner whether to bring an action or proceed summarily. Flood v. Van Wormer, 147 N. Y., 284, and see Town of Wheatfield v. Shasley, 23 Misc., 100. And this is so, even though the highway became such originally by the plotting of a tract of land owned by an association, which association had passed a resolution authorizing such an obstruction, but which reso- lution was never publicly recorded. Rudolph v. Ackerman, 58 App. Div., 596. But an abutter who does not own the fee of a highway cannot compel the removal of telegraph poles from the roadside when they do not cause any substantial damage to any easement of light, air or access, which he may have in the highway. Halleran ■s . Bell Telephone Co., 64 App. Div., 41; see Eels v. A. T. & T. Co., 143 N. Y., 133, and see notes to § 104, mite. Commissioners may compromise claims for penalties recoverable for the obstructions of highways and may take securities for their payment at a future date. Commissioners of Highways of Cortlandville v. Peck, 5 Hill, 215. As to encroachments and obstructions by elevated railroads, see Levin V. jST. Y. El. E. E. Co., 165 N. Y., 572; Heimburg v. Manhattan Ry. Co., 162 N. Y., 352; Shaw v. Manhattan Avenue R. Co., 35 Misc., 47; Shepard v. Metropolitan Elevated R. Co., 48 App. Div., 453; Stokes v. Manhattan E. Co., 47 App. Div., 58; Storm v. Id., 77 Id., 94; Shaw v. N. Y. El. E. R. Co., 78 Id., 290; and note carefully the decision in Fries v. New York & Harlem R. R. Co., 169 N. Y., 370; Muhlker v. Id., 173 N. Y., 549; Kierns V. Id., 173 Nu Y., 643; Kriete v. Id., 175 N. Y., 484; Sauer v. City of New York, 40 Misc., 585; also see for modiiication of rule in Fries Case, Dolan V. N. Y. & Harlem R. Co., 175 N. Y., 367. Proceedings under § 11 of the Railroad Law to compel a railroad to restore a highway at a crossing to its former state are entirely distinct from proceedings under this and the preceding sections. People ex rel. Bacon v. N. C. By. Co., 164 N. Y., 289. The commissioners first make a determination of the extent of the encroachment and then serve the notice. Flood v. Van Wormer, 70 Hun, 415; 147 N. Y., 284. See many additional cases under § 104, ante. 124 The Highway Law. § 106. Private road. — An application for a private road shall be made in writing to the commissioners of highways of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed to be laid out. (E. S., pp. 1379, 1383; post, pp. 882-893.)* Kevised from 1 K. S., eh. 16, tit. 1, art. 4, § 77, and L. 1853, ch. 174, § 1. Private roads may be annexed to highway district. § 37, ante. For constitutional provisions, see Constitution, art. 1, § 7, in notes to § 107, vost. For form of application under this section, see No. 102, post. In a case vphere proceedings were had under §§ 106-116 of the Highway Law for laying out a private road to a quarry, the court held that the proceedings were entirely without force and effect, because the method provided by these sections for assessing damages is unconstitutional. Berridge v. Schults, 33 Misc., 444; see additional note on this case under § 107, post. Consent of owner to laying out of private road may be oral. Baker v. Braman, 6 Hill, 47; Mohawk and Hudson K. E. Co. v. Artcher, 6 Paige, 83. A private road cannot be laid out across the inclined plane of a railroad. Mohawk and Hudson R. R. Co. v. Artcher, supra. Technical accuracy of description is not required and the description of a proposed private road by reference to a private way which has been used a great many years and has been called a, road may be sufficiently definite. Satterly v. "Winne, 101 N. Y., 218. As to contents of application, see People v. Taylor, 34 Barb., 481, and form of application. No. 102, post. An obstruction placed in a private road by the owner of the fee cannot be removed by one who has no right to the use of the road. Drake v. Rogers, 3 Hill, 604. As to whether application should be for a public road or a private road, see Matter of Burdick, 27 Misc., 298. § 107. Jury to determine necessity and assess damages.— One or more of the commissioners to whom the application shall be made, shall appoint as early a day as the convenience of the parties interested will allow, when, at a place designated in the town, a jury will be selected for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof. Revised from L. 1853, ch. 174, § 2. For method of selecting jury, see §| 110, 111, post, and method of assessing damages, SS 113-115, post. * So In the original. The Highway Law. 125 The Constitution of the State provides in the second paragraph of art. 1, § 7, that, " Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damag-e to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited." And it has been held that the jury provided by the Highway Law is not such a jury as this constitutional provision contemplated, and that proceedings under § 106 et seq. of the Highway Law to open a private road to a quarry confer no rights upon the owner of the quarry and that the adjoining owner might restrain the construction of the private road. Berridge v. Schults, 32 Misc., 444, citing People ex rel. Eckerson v. Trustees, 151 N. Y., 75, and Matter of Tuthill, 163 N. Y., 3 33. The Eckerson case was one in which the Court of Appeals considered the requirement of another portion of art. 1, § 7, of the Constitution than that above cited, that when private property is taken for a public use the compensation " shall be ascertained by a jury," and held that the " jury " intended was " a jury of men with such qualifications as the law in force at the time prescribes for jurors serving in the courts and selected from one of the lists in use by the courts." It will be seen that the Constitution in the Berridge case required " a jury of freeholders," while in the Eckerson case it required " a jury " from which might be drawn a distinction which seems not ta have been attempted. However, the doctrine which has heretofore pre- vailed to some extent of thus allovifing private property to be taken for private use is so anomalous that the constitutionality of this procedure and of the entire doctrine may be seriously questioned, see Taylor v. Porter, 4 Hiill, 140. Kote amendments of 1904 as to selecting jury. § 108. Copy application and notice delivered to applicant.— Sucli commissioners shall deliver to the applicant a copy of the application to which shall be added a notice of the time and place appointed for the selection of the jury, addressed to the owners and occupants of the land. Revised from L. 1853, ch. 174, § 3. For form of notice under this section, see Jfo. 103, post. §109. Copy and notice to be served.— The applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sundays and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering to each of them who reside in the same town a copy thereof, or in case of his absence, by leaving the same at his resi- 126 The Highway Law. dence, and upon such as reside elsewhere, by depositing in the post-office a copy thereof to each, properly inclosed in an envelope, addressed to them respectively at their post-office address, and paying the postage thereon, or, in case of infant owners, by like service upon their parent or guardian. Revised from L. 1853, ch. 174, § 4. Proof of service, form No. 104, post. It seems that a vendee under a land contract is an " owner." Benedict V. Calkins, 45 Hun, 549; but see, contra, Smith v. Ferris, 6 Hun, 553. As to waiver of written notice by appearance upon the hearing after oral notice, see Mohawk and Hudson Eailroad Co. v. Artcher, 6 Paige, 83. § 110. List of jurors. — At such time and place, on due proof of the service of the notice, one or more of the comm.issioners shall present a list of the names of thirty-six resident freeholders of the town, in no wise of kin to the applicant, owner or occupant, or either of them, and not interested in such lands. Revised from L. 1853, ch. 174, § 5; L. 1859, ch. 373, and L. 1860, ch. 468; amd. L. 1904, ch. 109, § 1; in effect March 23, 1904. That this method of selecting a jury is unconstitutional, see Berridge v. Sehults in notes to § 107, ante. If no objection was made to the jurors it vrill be presumed that they were freeholders or that the requirement was waived. The People v. Taylor, 34 Barb., 481. § 111. Names struck off. — The owners or occupants of the land may strike from the list not more than twelve names, and the applicant a like number; and of the number which remain, the twelve names standing first on the list shall be the jury. Revised from L. 1853, ch. 174, § 6; amd. L. 1904, ch. 109, § Z; In effect March 23, 1904. That this method of selecting a jury is unconstitutional, see Berridge V. Sehults in notes to § 107, ante. § 112. Place of meeting. — The commissioner or commission- ers present, shall then appoint some convenient time and place for the jury to meet, and shall summon them accordingly. Revised from L. 1853, ch. 174, § 7. Summons to juror, No. 105, post. The commissioners cannot delegate the summoning of the jury, but an objection to their doing so is waived by appearance at the meeting and failure to object. The People v. Commissioners, etc., of Greenbush, 24 Wend., 367. The Highway Law. 127 §113. Jury to determine and assess damages.— At least one commissioner and all tlie persons named and summoned on sucli jury, shall meet at the time and place appointed; but if one or more of the twelve jurors shall not appear, the commissioner or commissioners present shall summon so many qualified to serve as such jurors as will he sufiicient to make the number present twelve, to forthwith appear and act as such ; and when twelve shall have so appeared, they shall constitute the jury, and shall be sworn well and truly to determine as to the necessity of the road, and to assess the damages by reasoning* of the opening thereof. Revised from L. 1853, ch. 174, §| 8, 9; amd. L. 1904, oh. 109, § 3; in effect March 23, 1904. Allowance for additional fencing required, § 122, post. Oath to jury and witness, Nos. 106, 107, post. As to adjournment of meeting, see § 123, post. The assessment of damages before the highway is opened or worked or used may be waived; what amounts to such a waiver. Chapman v. Gates, 46 Barb., 313. § 114. Their verdict. — The jury shall view the premises, hear the allegations of the parties, and such witnesses as they may produce, and if they shall determine that the proposed road is necessary, they shall assess the damages to the person or persons through whose land it is to pass, and deliver their verdict in writ- ing to the commissioners. Revised from 1 E. S., ch. 16, tit. 1, art. 4, § 78, and L. 1853, ch. 174, § 10. Form of verdict, No. 108, post. § 115. Value of highway discontinued.— if the necessity of such private road has been occasioned by the alteration or dis' continuance of a public highway running through the lands belonging to a person through whose lands the private road is proposed to be opened, the jury shall take into consideration the value of the highway so discontinued, and the benefit resulting to the person by reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying' out of such private road. Revised from L. 1853, ch. 174, § 11. For deduction for value of highways discontinued upon the opening of a public highway, see § 87, ante. § 116. Papers to be recorded in the town cleric's office.— The commissioners shall annex to such verdict the applicatiouj and * So in the original. 128 The Highway Law. their certificate that the road is laid out, and the same shall be filed and recorded in the town clerk's office. Eevised from L. 1853, ch. 174, § 12. For filing papers upon the opening of a public highway, see § 98, ante. Filing papers generally, § 150; order laying out road, No. 109, post. An order of commissioners laying out a private way may be sufficient as regards the description of the private way, where it describes it as laid out pursuant to the application, even though the application described the proposed road only by reference to an existing private way. Satterly v. Winne, 101 N. Y., 218. See People v. Robinson, 29 Barb., 80. § 117. Damages to be paid before opening the road.— The damages assessed by the jury shall be paid by the party for whose benefit the road is laid out, before the road is opened or used; but if the jury shall certify that the necessity of such private road was occasioned by the alteration or discontinuance of a public highway, such damages shall be paid by the town, and refunded to the applicant. Revised from L. 1853, ch. 174, § 14. Damages for opening public highway and costs of proceedings, §§ 92, 93, ante. That the damages must be paid before the road is opened and used, see Mohawk and Hudson Railroad Co. v. Artcher, 6 Paige, 83. The right to an assessment of damages before a highway should be opened or worked or used, may be waived; what amounts to such a waiver. Chapman v. Gates, 46 Barb., 312. The damages must be paid by the applicant unless the necessity for the road was occasioned by the discontinuance or alteration of a public highway in which case they must be repaid by the town to the appli- cant. Matter of Lawton, 23 Misc., 426. §118. Fees of officers. — Every juror, in proceedings for a private road, shall be entitled to receive for his services one dollar and fifty cents; and commissioners, of highways, their per diem compensation, to be paid by the applicant. Revised from L. 1880, ch. 114, § 4. §119. Motion to confirm, vacate or modify.— Within thirty days after the decision of the jury shall have been filed in the town clerk's office, the owner or occupant may apply to the county The Highway Law. 129 court of the county wherein such private road is situated, for an order confirming, vacating or modifying their decision; and such court may confirm, vacate or modify such decision as it shall deem just and legal. If the decision is vacated, the court may order another hearing of the matter before another jury, and remit the proceedings to the commissioners of highways of the same toAvn for that purpose. If no such motion is made, the decision of the jury shall he deemed final. The motion shall be brought on, upon the service of papers on the adverse party in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein, and the decision of the county court shall be final, except that a new hearing may be had, as herein provided. If the final decision shall be adverse to the applicant, no other application for the same road shall be made within two years. Kevised from L. 1853, ch. 174, § 5; L. 1859, ch. 373, and L. 1860, ch. 468. For notes upon the law and practice in analogous proceedings, see notes to § 89, ante. As to costs of this motion, see § 153, post. For form of notice of application under this section, see No. 108, post. For form of order under this section, see No. 108, post. § 120. Costs of new hearing. — If upon a new hearing, the damages assessed are increased, the applicant shall pay the costs and expenses thereof, otherwise the owner shall pay the same. New. § 121. For what purpose private road to be used.— Every such private road when so laid out, shall be for the use of such applicant, his heirs and assigns; but not to be converted to any other use or purpose than. that of a road; nor shall the occupant or owner of the land through which said road shall be laid out, be permitted to use the same as a road, unless he shall have signified such intention to the jury who assessed the damages for laying out such road, and before such damages were assessed. Revised from 1 E. S., ch. 16, tit. 1, art. 4, § 79. That a private road is for the exclusive use of the applicant unless an occupant or owner of the land through which such road shall have 9 130 The Highway Law. been laid out signified his intention to use it at the time it was laid out and at the time damages were assessed. See Lambert v. Hoke, 14 Johns., 383; Taylor v. Porter, 4 Hill, 140. The public cannot use it except when on business with the owner or upon lawful occasion to go upon the lands benefited. Taylor v. Porter, supra. Kights of owner of lands as to keeping persons out of a private road which he has constructed over such lands. People v. Moore, 50 Hun, 356. The penalty provided in cases where public highways are obstructed does not apply to the obstruction of private roads. Fowler v. Lansing, 9 Johns., 349; see, also, Drake v. Rogers, 3 Hill, 604. § 122. Highways or roads along division lines. — Whenever a highway or private road shall be laid along the division line between lands of two or more persons, and wholly upon one side of the line, and the land upon both sides is cultivated or improved, the persons owning or occupying the lands adjoining such high- way or road, shall be paid for building and maintaining such additional fence as they may be required to build or maintain, by reason of the laying out and opening such highway or road; which damages shall be ascertained and determined in the same manner that other damages are ascertained and determined in the laying out of highways or private roads. Revised from L. 3853, ch. 174, § 16. It has been held that an abutter is never required to maintain any fence along the highway; but that testimony as to the cost of the fencing which an abutter may find it to his advantage to maintain along the new highway is admissible. Matter of Pugh, 22 Misc., 43; reversed in 46 App. Div., 634, but without discussing this point. § 123. Adjournments. — If any accident shall prevent any of the proceedings required by this chapter relating to the laying out, altering or discontinuing of a highway, or the laying out a private road, to be done on the day assigned, the proceedings may be adjourned to some other day, and the commissioner shall pub- licly announce such adjournment. Re\'ised from L. 1853, ch. 174, § 13. The Highway Law. 131 ARTICLE V. Beidges. Section 130. Liability of towns for construction and care of bridges. Liability of counties.* 131. [Rep. by Co. L.] 132. Statement of expenses. 133. Supervisors to levy tax. 134. Joint liability of towns, and their joint contracts. 135. Eefusal to repair. 136. Proceedings in court. 137. Commissioners to institute proceedings. 138. Their duty. 139. Commissioners to report. 140. Appeals. 141. Power of court on appeal. 142. Refusal to repair bridge. 143. Penalty, and notice on bridge. 144. Offense. 145. Iron bridges. § 130. Liability of towns for construction and care of bridges. Liability of counties. — The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free . bridges con- structed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of "Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses. When such bridges are constructed over streams or other waters forming the boundary line between a city of the third class and a town, such city and town shall be liable each to pay its just and equitable share of the expenses for the construction, maintenance and repair of such bridges. Except as otherwise provided by law, a city of the third class shall be deemed a town for the purposes of this article. Each of the counties of this state shall also be liable to pay for the 'Statutory CoDStructlon Law, § 34. 132 The Highway Law. construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair. Revised from L. 1883, ch. 346, §§ 1, 4-6; amd. L. 1895, ch. 416, and L. 1902, ch. 321, in effect April 2, 19C2. As to repair of bridges generally, see § 4, subds. 1, 9, ante. As to extraordinary repairs, etc., to bridg-es, see §§ 10, 11. ante. As to liability for defective bridges, see § 16, ante. As to repair of toll bridges, see § 13, ante. As to equality of shares of expense and proceedings to compel con- struction or repair of bridges, see §§ 134-136, post. As to payment for iron bridge, see § 145, post. Raising additional funds for the construction and repair of bridges, § 9, ante, and see County Law, §§ 69, 70, pages 173, 174, post. Powers of supervisors over bridges generally, County Law, §§ 60-70, pages 169-174, post; also §§ 184-186, post. That a county may render aid to a town for the construction and repair of bridges, see County Law, §§ 61, 63, 64, pages 169-171, post. Special act with reference to towns one-quarter of whose territory has been taken for park purposes and which adjoin a city oi one and one-half millions population. L. 1897, ch. 269; L. 1902, ch. 301. Duty of railroad as to bridges over its tracks and its bridges over high- ways. Railroad Law, § 64; Bush v. D., L. & W. R. R. Co., 166 N. Y., 210. The general scope of this section is: first, to declare the general liabil- ity of towns in respect to its highways (?) and bridges; second, to declare the liability of towns as between themselves as to bridges constructed upon boundary lines; third, to impose upon the county a fixed liability for a part of the expense; and, fourth, to impose an added liability as to bridges erected on county lines. (The provision for county aid was repealed in 1895.) People ex rel. Root v. Bd. Supervisors, 146 N. Y., 107. A town acts as a sovereign power in building a public bridge over navi- gable waters and in the absence of statute is not liable for damages occa- sioned to property thereby. Hall v. Town of Oyster Bay, 61 App. Div., 508; but see HufEmire v. City of Brooklyn, 162 N. Y., 584. The liability of a, county to pay at least one-third of the excess of the construction and repair of bridges over and above one-sixth of one per cent, of the assessed valuation of the property in a tovm, as it existed before the amendment of § 130 of the Highway Law by ch. 416 of the L. 1895, was not affected by that act as regards bridges completed twenty- six days before such act went into effect, but save as to bridges con- structed during the continuance of that section unamended there is no liability upon counties to contribute toward the expense of bridges not on their borders. Stone v. Board of Supervisors, 166 N. Y., 85. The Highway Law. 133 But neither a town nor a county need contribute to the expense of building a bridge unless it connects two passable highways. Beckwith et al. V. Whalen, 70 N. Y., 430; People ex rel. Keene v. Supervisors, 151 N. Y., 190, and see Town of Candor t. Town of Tioga, 11 App. Div., 502. Authority to repair highways includes authority to build a bridge to connect highways. Huggans v. Kiley, 125 N. Y., 88. It was held in Matter of Freeholders of Irondequoit (68 N. Y., 376) that by the former acts there was no authority conferred as to bridges over bays, or lakes, or other bodies of water between towns, except streams, but this decision is no longer applicable, as § 130 expressly includes bridges over all waters. And see as to a bridge built across a canal by a railroad company. Briggs V. N. Y. C. & H. K. K. E. Co., 30 Hun, 291. Consent of commissioners of both towns to crossing a joint bridge vrith railroad, is necessary. Wheatfield v. Tonawanda St. E. E. Co., 92 Hun, 460. And if a town is sued to recover for injuries sustained for defects in a bridge which is reqtured to be kept by a private owner, it will be subrogated to the rights of the plaintiff and may recover over against the individual owner. Town of Clay v. Hart, 25 Misc., 110; affd., 41 App. Div., 625. See, as declaratory of the statute as to joint liability, and as to duty to maintain approaches of a joint bridge, Edwards v. Ford, 22 App. Div., 277. A town is not liable for defects in a bridge which was temporarily put up by the commissioner of highways acting as a volunteer and not in his official capacity upon private property to take the place of a public bridge which had been carried out by a freshet. Ehle v. Tovyn of Minden, 70 App. Div., 275. It has been held that a board of supervisors may compel two towns to bridge a stream which separates them and may levy a tax upon the said towns to meet the expense thereof. Town of Newkirk v. Newbury et al., 122 N. Y., 571. The rule seems to be that where a bridge built by private enterprise remains a private bridge, the town should not be held liable for its defect, but where it is adopted by the public then the town may be liable. If the act of the builder has created the necessity of a highway bridge in a theretofore unbridged spot, he must keep it in repair, while if he bridges in a spot which does not interfere with the highway, and the public comes to his bridge, an acceptance by the authorities will be pre- sumed, and they must make the repairs. Heacock v. Sherman, 14 Wend., 58; Dygert v. Schenck, 23 Wend., 466; Babcock v. N. Y. C. & H. E. E. E. Co., 20 Week. Dig., 477; Town of Clay v. Hart, 25 Misc., 110; afld., 41 App. Div., 625; Elliott, Eoads and Streets (2d ed.), §§ 28, 57, 59. The joint liability exists where town boundary is a side and not the center of the stream. Town of B. F. v. Town of W., 41 Misc., 428. 134 The Highway Law. § 131. [This section was repealed by the County Law. L. 1892, chap. 686.] See § 63 of that law, page 170, post. § 132. Statement of expenses. — The commissioners of high- ways of every town in which the whole or any part of any free bridge may be, shall make and deliver to the supervisor of the town, on or before the first day of November in each year, a written statement, verified by one of them, containing a description of such bridge, the whole expense in items incurred by the town during the year preceding for its construction or repair. Keyised from L. 1?83, ch. 346, § 2. For form of statement required by this section, see No. 110, post. See Town of Wirt v. Supervisors, 90 Him, 205. § 133. Supervisors to levy tax. — Every supervisor to whom such statement is delivered shall present the same to the board of supervisors of his county at its next annual session thereafter, and the board of supervisors shall levy upon the taxable property of the county a sum sufficient to pay its proportion of such expense and the same when collected shall be paid to the commissioners of high- ways of such town to be applied toward the payment of such expense. Revised from L. 1683, ch. 346, § 3. The payments to commissioners of highways must be made to their treasurer, if any. § 2, ante. Levying expenses in other cases, §§ 139, 142, post. As to the amount of a county's share of these expenses, see § 130, ante, and County Law, §§ 61, 63, 64, pages 169-171, post. It seems that the board of supervisors may audit and determine the amount which has been expended during the year by the commissioners of highways. Town of Salamanca t. Cattaraugus Co., 81 Hun, 282. § 134. Joint liabilities of towns, and their joint contracts.— Whenever any two or more towns shall be liable to make or main- tain any bridge or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines. The commissioners of highways of all the towns, or of one or more The Highway Law. 135 of such towns, the others refusing to act, may enter into a joint contract for making and repairing such bridges. Kevised from L. 1841, ch. 235, §§ 1, 2, and L. 1857, ch. 383, §§ 1, 2. As to when towns are jointly liable to build and repair bridges, see i 130, ante. Act to provide for the construction of bridges in certain cities and towns or incorporated villages in said towns. L. 1897, ch. 869, as amd. by L. 1898, ch. 591, and L. 1899, ch. 232. Contracts made ■under this and the following sections bind the towns to pay their respective portions. The amounts paid for these repairs can- not, after being informally presented for audit and included by the town board in their certificate of the amount necessary to be raised for high- way purposes, and the commissioner's accounts approved be recovered back under L. 1887, ch. 673, as amd. by L. 1892, ch. 301, though the com- missioner's procedure was somewhat irregular. Edwards v. Ford, 22 App. Div., 277. See Beckvrith et al. v. Whalen and cases following in notes to § 130, ante. A provision that a bridge shall be built and maintained at the joint expense of towns regardless of town lines, means that the expense shall be shared equally, regardless of the proportion located in either town. Lapham v. Eice, 55 N. Y., 472. § 135. Refusal to repair. — If the commissioners of highways of either of such towns, after notice in writing from the commis- sioners of highways of any other of such towns, shall not within twenty days give their consent in writing to build or repair any such bridge, and shall not within a reasonable time thereafter do the same, the commissioners of highways giving such notice may make or repair such bridge, and then maintain an action in the name of the town, against the town whose commissioners neglect or refuse to join in such making or repairing, and in such action, the plaintiffs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the same, together with costs and interest. Eevised from L. 1841, ch. 225, §§ 3, 4, and L. 1857, ch. 383, § 3. As to extraordinary repairs of bridges located in one town only, see §§ 10, 11, ante. As to repair of bridges generally, see § 4, subds. 1, 9; § 16, ante. As to repair of toll bridges, see § 13, ante. As to refusal to repair, see also § 142, post. As to proceeding to compel construction or repair, see S§ 136, 137, post. 136 The Highway Law. For form of notice under this section, see No. Ill, post. For form of consent under this section, see No. 113, post. Where a town has by mistake paid more than its proportion, the excess may be recovered of the town that did not pay its full share. Surdam v Fuller, 31 Hun, 500; Corey v. Rice, 4 Lans., 141; but see Flynn at al. v. Hurd, 118 N. Y., 19. If a commissioner repair a bridge without giving notice as provided by the statute to the commissioners of the other towns jointly liable, or if the other commissioners consent after notice and unite in the work, the commissioner giving the notice cannot recover the portion of the expense chargeable to the other towns, because, in the first case, he has failed to comply with the requirements of the statute, or, in the second case, the commissioners' con&ent and performance has taken the case out of the statute. Flynn et al. v. Hurd, 118 N. Y., 19. But the service of the notice may be waived and where an application for co-operation is met by an absolute refusal to join in the repairs when they may become necessary the requirement of notice is waived. Day v. Day, 94 N. Y., 153; see, also, Clapp v. Tovyn of Ellington, 87 Hun, 542; affd., 154 N. Y., 781. § 136. Proceedings in court. — "Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of- such towns may, by petition signed by them, apply to the commissioners of highways in each of such towns, to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge within a reasonable time, either for want of funds or any other cause, such freeholders, upon affidavit and notice of motion, a copy of which shall be served on each of the commissioners, at least eight days before the hearing, may apply to the supreme court at a special term thereof, to be held in the judicial district in which such bridge, or any part thereof, shall be located, for an order requiring such commissioners to build, rebuild or repair such bridge, and the court upon such motion may, in doubtful cases, refer the case to some disinterested person to ascertain the requisite facts in rela- tion thereto, and to report the evidence thereof, to the court. Upon the coming in of the report, in case of such reference, or upon or after the hearing of the motion, in case no such reference shall be ordered, the court shall make an order thereon as the justice of the case shall require. If the motion be granted in whole The Highway Law. 137 or in part, whereby funds shall be needed by the commissioners to carry the order into effect, such court shall specify the' amount of money required for that purpose, and how much thereof shall be raised in each town. Revised from L. 1857, ch. 639, §§ 1, 2. As to when towns are jointly liable to make and maintain bridges, see § 130, ante. For form of petition and refusal under this section, see Nos. 113, 114, post. Notice of motion, affidavit and order, Nos. 115-117, post. § 137. Commissioners to institute proceedings.— The com- missioners of highways of any such town, may institute and prose- cute proceedings under this chapter, in the name of the town, to compel the commissioners of such adjoining towns, to join in the building, rebuilding or repair of any such bridge, in like manner as freeholders are hereby authorized. Revised from L. 1857, eh. 639, § 3. Institution of these proceedings by freeholders, § 136, ante. § 138. Their duty. — The order for building, rebuilding or repairing a bridge being made, and a copy thereof being served on the commissioners of highways of such adjoining towns respect- ively, the commissioners of highways of such towns shall forthwith meet and fix on the plan of such bridge, or the manner of repairing the same, and shall cause such bridge to be built, rebuilt or repaired out of any funds in their hands applicable thereto; and if an ade- quate amount of funds are on hand, they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash and in part upon credit, according to the exigency of the case; and the commissioners may enter into a contract for building, rebuilding or repairing such bridge, pledging the credit of each town for the payment of its appropriate share, so far as the same shall be upon credit. Revised from L. 1857, ch. 639, § 4. See, as declaratory of the section. Matter of Certain Freeholders, 46 Hun, 620. § 139. Commissioners to report.— The commissioners of highways of each town, shall make a full report of their pro- 138 The Highway Law. ceedings in the premises to the town board, at the time of making their annual report. They shall attach to the copy of the order granted by the supreme court, an accurate account under oath, of what has been done in the premises, and deliver the same to the supervisor of their town. The board of supervisors at their annual meeting, shall levy a tax upon each of such towns, when in the same county, and upon the appropriate town when in different counties, for its share of the costs of building, rebuilding or repair- ing such bridge, after deducting all payments actually made by the commissioners thereon; which tax, including prior payments, shall in no case exceed the amount specified in the order. Bevised from L. 1857, eh. 639, § 5. Annual report of commissioners of highways, § 19, ante. General method of levying expenses, § 133, ante, and § 142, post. Provisions as to order referred to in this section, § 136, ante. Form of report and account under this section, Nos. 34-35, post. § 140. Appeals. — Either party aggrieved by the granting or refusing to grant such order by the court at special term, may appeal from such decision to the general term of the supreme court for the review of the decision. The general term may alter, modify or reverse the order, with or without costs. Bevised from L. 1857, ch. 639, § 6. This section has not foUovFed the change of the General Term of the Supreme Court into the Appellate Division. § 141. Power of court on appeal. — The special term may grant or refuse costs as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last preceding section, shall conform to the practice of the supreme court, in case of appeal from an order of a special term, to the general term. Revised from L. 1857, ch. 639, § 7. Here again the statute has not followed the change of the General Term of the Supreme Court into the Appellate Division. § 142. Refusal to repair bridge. — Whenever any such bridge shall have been or shall be so out of repair as to render it unsafe for travelers to pass over the same, or whenever any such bridge The Highway Law. 139 shall have fallen down, or been swept away by a fresbet or other- wise, if the commissioners of highways of the adjoining towns, after reasonable notice of such condition of the bridge, have neglected or refused, or shall neglect or refuse to repair or rebuild it, then whatever funds have been or shall be necessarily or reasonably laid out or expended in repairing such bridge, or in rebuilding the same, by any person or corporation, shall be a charge on such adjoining towns, each being liable for its just proportion; and the person or corporation who has made such expenditure, or shall make such expenditures, may apply to the supreme court, at a special term, for an order requiring such towns severally to reim- burse such expenditures, which application shall be made by serving papers upon the commissioners of highways of each of such towns at least eight days; and the court may grant an order requir- ing each of the adjoining towns to pay its just proportion of the expenditure, specifying the same; and the commissioners of high- ways in each of such towns shall forthwith serve a copy of such order upon the supervisor of each of their towns, who shall present the same to the board of supervisors, at their next annual meeting. The board of supervisors shall raise the amount charged upon each town by the order, and cause the same to be collected and paid to such persons or corporation as incurred the expenditure. The order shall be appealable. Kevised from L. 1657, ch. 639, § 8. General duty to repair bridges, § 4, subds. 1, 9, ante. Extraordinary repairs of bridges located in one town only, §§ 10-11, ante. Bepair of toll bridges, § 13, ante. Liability for defective bridges, § 16, ante. General method of levying expenses of repairs, etc., § 133, 139, ante. Befnsal to repair, see, also, s 135, ante. § 143. Penalty, and notice on bridge. — The commissioners of highways may fix and prescribe a penalty, not less than one, nor more than five dollars, for riding or driving faster than a walk on any bridge in their town, whose chord is not less than twenty- five feet in length and put up and maintain in a conspicuous place at each end of the bridge, a notice in large characters, stating each penalty incurred. 140 The Highway Law. Kevised from 1 K. S., ch. 16, tit. 1, art. 6, § 122; L. 1873, ch. 477, §§ 1, 2, and L. 1875, ch. 22, § 1. Eecovery of penalties generally, § 164, post. Penalty for fast driving upon or overloading of canal bridges. Canal Law, § 176. § 144. Offense. — Whoever shall ride or drive faster than a walk over any bridge, upon which notice shall have been placed, and shall then be, shall forfeit for every offense, the amount fixed by such commissioners, and specified in the notice. Eevised from 1 R. S., ch. 16, tit. 1, art. 6, §§ 123, 124; L. 1873, ch. 477, § 3; L. 1875, ch. 22, § 2. Recovery of penalties generally, § 164, post. § 145. Iron bridges. — No town or its officers shall be com- pelled to accept or pay for an iron or steel bridge exceeding two hundred feet in length, or having a span or spans exceeding one hundred feet in length, constructed therein or upon its borders, until the state engineer and surveyor shall certify to the completion of the bridge, pursuant to the contract under which it shall have been constructed, with his approval of the manner of its construc- tion and the material thereof; and all contracts made for the con- struction of any such bridge, shall be subject to the provisions of this section. New. Construction and repair of bridges generally, §§ 130-142, ante. In an action to recover for the expense of constructing an iron bridge of this kind, the burden rests upon the plaintiff to show a compliance with this section. Town of Candor v. Town of Tioga, 11 App. Div., 502. ARTICLE VI. Miscellaneous Peovisions. Section 150. Papers, where filed. 151. When commissioners do not act. 152. Costs on motion. 153. Injuries to highways. 154. When town not liable for bridge breaking. 155. Steam traction engine on highway. 156. Trees, to whom they belong. , The Highway Law. 141 Beotion 157. [Carriages meeting to turn to the right, etc.] 158. Intemperate drivers. 159. Drivers, when to be discharged. 160. Leaving horses without being tied. 161. Owners of certain carriages liable for acts of drivers. 162. Term " carriage " defined. 163. Entitled to free use of highways. 164. Penalties, how recovered. 165. Extent of this chapter.* 165. Stone and rubbish not to be dumped in highways. 166. Registration by owners of automobiles. 167. tise of highways by automobiles. 168. Brakes and lamps on automobiles. 169. Stop automobile on signal. 169a. Licenses or permits for automobiles. 169b. Penalties. § 150. Papers? where filed. — All applications, certificates, appointments and other papers relating to the laying out, altering or discontinuing of any highway shall be filed by the commissioners of highways as soon as a decision shall have been made thereon in the town clerk's office of their town. Eevised from 1 E. S., ch. 16, tit. 1, art. 4, § 83; see L. 1880, ch. 114, § 2. Additional provisions for filing papers, §§ 98, 116, ante. The applications, certificates and orders filed or filed and entered pur- suant to this section become public records and prove themselves. Van Bergen v. Bradley, 36 N. Y., 316. § 151. When commissioners do not act. — When any com- missioner or other officer appointed by a court under this chapter shall neglect or be prevented from serving, the court which appointed him shall appoint another in his place. New. § 152. Costs on motion. — Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may be allowed in the dis- cretion of the court not exceeding fifty dollars. On an uncontested motion to confirm the report of the commissioners so appointed, if said report is favorable to the applicant and confirmed by the court, costs may be allowed not exceeding fifty dollars sufficient to compensate the applicant's attorney for his services in the proceed- ings. Costs of any other motion in a proceeding in a court of • So In the original. 142 The Highway Law. record, authorized by this chapter, may be allowed in the discretion of the court not exceeding ten dollars. New. Amd. L. 1904, ch. 192, § 1; in eJEEect April 4, 1904. See People ex rel. Bevins v. Supervisors of Warren, 82 Hun, 298, in notes to § 92, ante. Additional provisions as to costs of motions, §§ 92, 119, ante. § 153. Injuries to highways.— Whoever shall injure any high- way or bridge maintained at the public expense, by obstructing or diverting any creek, water-course or sluice, or by dragging logs or timber on its surface, or by any other act, or shall injure, deface or destroy any mile-stone or guide-post erected on any highway, shall for every such offense, forfeit treble damages. Eevised from 1 K. S., ch. 16, tit. 1, art. 7, §§ 123-130. For law and practice, see notes to § 15, ante. Recovery of penalties generally, § 164, post. Mile-stones and gnide-posts generally, § 5, ante, and notes. Penal liability. Penal Code, § 385, subd. 3; §§ 639, 640. § 154. When town not liable for bridge breaking.— No town shall be liable for any damage resulting to person or property, by reason of the breaking of any bridge, by transportation on the same, of any vehicle and load, together weighing four tons or over; but any ovsmer of such vehicle or load, or other person engaged in transporting or driving the same over any bridge, shall be liable for all damages resulting therefrom. Eevised from L. 1887, ch. 526, § 1; L. 1890, ch. 210. Liability for defective highvyays and bridges generally, § 16, ante. This section does not apply to bridges vehich it is the duty of railroad companies to maintain. Bush v. D., L. & W. R. E. Co., 166 W. Y., 210. The defense afforded by this section is an affirmative one and must be proved by the defendant. Vandev^ater v. Town of Wappinger, 69 App. Div., 325. It seems that where a traction engfine is drawing another vehicle con- nected with it by a pole that they may be considered as a " vehicle and load." Heib v. Town of Big Flats, 66 App. Div., 88; Vaudewater v. Town of Wappinger, 69 App. Div., 325; but see contra dicta in Bush v. D., L. & W. E. R. Co., 166 N. Y., 210, 217. The added weight upon the bridge caused by the effort of the engine in hauling a thresher not yet upon the bridge may be shown upon the question of total burden upon the bridge. Heib v. Town of Big Flats, supra; see also Vandewater v. Town of Wappinger, supra. The Highway Law. 14:3 § 155. Steam traction engines on highway.— The owner of a carriage, vehicle or engine, propelled by steam, his servant or agent, shall not allow, permit or use the same to pass over, through or upon any public highway or street, except upon railroad tracks, unless such owners, or their agents or servants, shall send before the same, a person of mature age, at least one-eighth of a mile in advance, who shall notify, and warn persons traveling or using such highway or street, with horses or other domestic animals, of the approach of such carriage, vehicle or engine; and at night such person shall carry a red light, except in incorporated villages and cities. This section shall not apply to any carriage or motor vehicle, propelled by steam, developing less than twenty-five horse power, other than a steam traction engine. Revised from L. 1886, ch. 269, §§ 1, 3; amd. L. 1901, ch. 531, § 1. For provisions making- violation of this section a misdemeanor, see Penal Code, § 640. As to sending a person ahead of a steam road roller to warn travelers, see Mullen v. Villag-e of Glens Falls, 11 App. Div., 375; Paine v. The City of Rochester, 37 N. Y. S. R., 587. As to steam rollers in streets generally, see Rector v. Syracuse Rapid Transit R. Co., 66 App. Div., 395; and Halstead v. Village of Warsaw, 43 App. Div., 39. One who after having been warned of the defective condition of a bridge rides upon it on a traction engine is guilty of contributory negligence. Spencer v. Town of Sardinia, 42 App. Div., 478. It had been held before the amendment of 1901, that the provision as to sending a person one-eighth of a mile in advance did not apply to automobiles. Nason v. West, 31 Misc., 583. § 156. Trees, to whom they belong. — All trees standing or lying on any land over which any highway shall be laid out, shall be for the proper use of the owner or occupant of such land, except such of them as may be requisite to make or repair the highway or bridges on the same land. Revised from 1 R. S., ch. 16, tit. 1, art. 7, S 126. Right to use trees for making repairs in highways, see notes under § 4, subd. 1, ante. Abatement of highway taxes for planting shade trees, §5 43, 44, ante. Penalty for leaving horses near to or the destruction or mutilation of trees. L. 1875, ch. 215, as amd. by L. 1881, ch. 344; Penal Code, § 640; see also Village Law, $ 89, subd. 8. 144 The Highway Law. For a full consideration of the entire question of the rights of tjie abutter, and of the municipality as to trees in streets, see opinion of Yeoman, J., in Ellison v. Allen et al., 30 N. Y. Supp., 441; 62 N. Y. S. R., 274. Trees are the property of the abutter, if he is the owner of the fee of the street, and he may remove them at his pleasure, notwith- standing a municipal ordinance against injury to shade trees. The Village of Lancaster v. Richardson, 4 Lans., 136; Ellison v. Allen et al., 30 N. Y. Supp., 441; 62 N. Y. S. R., 274. And he may restrain their removal where it would work irreparable injury, unless they are detrimental to the highwaj', or their removal is necessary for street purposes. Evans v. Board of Street Com- missioners, 84 Hun, 206; Ellison v. Allen, supra. As to the right to remove trees where the owner of a tract of land has plotted it and laid it out into lots and streets. Niagara Falls Suspension Bridge Co. v. Bachman, 4 Lans., 523; 66 N. Y., 261. An abutter who does not own the fee of the highway may, neverthe- less, recover damages for injuries to shade trees by third parties, when such trees were planted with the consent of the municipal authorities, and their sanction will be presumed where the trees are shown to have stood for a year. Lane v. Lamke, 53 App. Div., 395; see, also, Gorham V. Eastchester Electric Co., 80 Hun, 290 and McCruden v. Rochester Ry. Co., 5 Misc. 59; affd., 77 Hun, 609, holding that treble damages may be recovered under Code Civ. Proc, §§ 1667, 1668. The measure of damages is the difference in the value of the prem- ises before and after cutting of the tree. Edsall v. Howell, 86 Hun, 424; Evans v. Keystone Gas Co., 72 Hun, 503; Dvright v. E., C. & N. R. R. Co., 132 N. Y., 199; Hartshorn v. Chaddock, 135 N. Y., 116. As to trees being an obstruction of a highway, see Town of Wheat- field V. Shasley, 23 Misc., 100; also Edsall v. Howell, 86 Hun, 424, in notes to § 104, ante. Right of electric light company to trim trees to clear its wires. Van Sicklen v. Jamaica Electric Light Co., in notes to § 104, ante. § 157. [Carriages meeting to turn to the righti etc.]— (A) Whenever any persons, traveling with any carriages, or riding horses or other animals, shall meet on any turn- pike road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to the right of the center of the road, so as to permit such carriages, horses, or other animals to pass without interference or interruption, (under the penalty of five dollars for every neglect or offence, to be recovered by the party injured).* (B) Any carriage, or the rider of a horse or other animal, over- taking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or • So in the original. The Highway Law. 145 person having charge of any carriage, horse or other animal, traveling, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal, free passage on his left. (C) In turning corners to the right, carriages, horses or other animals, shall keep to the right of the center of the road. In turn- ing comers to the left, they shall pass to the right of the centre of intersection of the two roads. (D) Any person neglecting to comply with or violating any pro- vision of this section shall be liable to a penalty of five dollars to be recovered by the party injured, in addition to all damages caused by such neglect or violation. Kevised from 1 E. S., ch. 20, tit. 13, § 1; amd. L. 1902, ch. 96, in effect March 26, 1902. The duty to pass to the rig-ht exists independently of statute and applies to vehicles passing each other on the same side of roads so wide that there is no necessity to g'O to the " right of the center of the road " in order safely to pass. This statute was passed only to create a penal offense. Wright v. Fleischman, 41 Misc., 533. The direction to pass to the right of the center of the road means to the right of the center of the worked portion of the road. Earing v. Lan- singh, 7 Wend., 185; Pike v. Bosworth, 7 N. Y. S. K., 665. And in the winter the traveler should go to the right of the center of the beaten or traveled track, when it is difficult by reason of the snow to ascertain the extent of the worked portion. Smith v. Dygert, 12 Barb., 613. Before the amendment of 1902 travelers on horseback were not within the rule of turning to the right when meeting others on horseback or in vehicles. Dudley v. BoUes, 24 Wend., 465. Nor were pedestrians meeting vehicles within the rule. Savage v. Gerst- ner, 36 App. Div., 220, and see Grant v. City of Brooklyn, 41 Barb., 381. And this rule does not seem to have been changed by the amendment. Nor have footmen any right of way at a city crossing superior to that of vehicles. Savage v. Gerstner, 36 App. Div., 220. But wheelmen are within the rule as to vehicles and are entitled to the right side of the road. Quinn v. Pietro, 38 App. Div., 484; Schimpf v. Sliter, 64 Hun, 463. The fact that it is more difficult for one party to turn than another will not excuse his failure to observe the rule of the road, unless the difficulty is so great as to render it nearly impossible to observe such rule. Earing v. Lansingh, 7 Wend., 185. One cannot excuse a violation of the law of the road simply by showing 10 146 The Highway Law. that the violation was for the purpose of turning into a road which he was approaching. HefEernan v. Barber's Son, 36 App. Div., 163. But he may excuse such a violation by showing that there was an obstruction upon the right-hand side of the road. Quinn v. O'Keefe, 9 App. Div., 68; Mooney v. Trow Directory Printing and Bookbinding Co., 2 Misc., 238. A person violating the rule of the road is presumptively liable for resulting accidents. Burdick v. Worrall, 4 Barb., 596; Pike v. Bosworth, 7 N. Y. S. R., 665; Simmouson v. Stellenmerf, 1 Edm. Sel. Cas., 194; Savage V. Gerstner, 36 App. Div., 220; Quinn v. O'Keefe, 9 App. Div., 68. But the rule of the road is not absolute and a defendant is not liable unless his negligence is established. Quinn v. O'Keefe, supra; Savage v. Gerstner, 36 App. Div., 220; Newman v. Ernst, 31 N. Y. S. E., 1; 10 N. Y. Supp., 310, and see Heffernan v. Barber's Son, 36 App. Div., 163. Nor can a plaintiff recover wdthout showing that he endeavored to avoid the accident. Schimpf v. Sliter, 64 Hun, 463, and see Simmonson v. Stellenmerf, 1 Edm. Sel. Cas., 194. But a plaintiff guilty of a violation of the law of the road may still recover if he clears himself of tue charge of contributory negligence. Quinn v. O'Keefe, supra. Mere driving at a high rate of speed is not negligence per se. Crocker V. Knickerbocker Ice Co., 92 N. Y., 652; Campbell v. Wood, 32 App. Div., 599. But it may be when driving among a number of children. Schaffer v. Baker Transfer Co., 29 App. Div., 459; Edsall v. Vandemark, 39 Barb., 589; see also Phelps v. Wait, 30 N. Y., 78. There is no rule of law absolutely requiring a person to keep his horses in a highway under control, but he must of course use due care to do so, but if they get beyond his control without his fault, he vrill not be held liable because he was on the left side of the highway at the time of the accident, if he has used all his efforts to keep them Upon the right side of the road. Cadwell v. Arnheim, 152 N. Y., 182. Persons driving along a highway have the right to rely upon the exer- cise of ordinary care and prudence by others using it. Hartel v. Holland, 19 Week. Dig., 312. Where two vehicles meet at right angles at the corner of intersecting streets, and one driver signals that he will pass before the other, he has a right to assume, in the absence of contrary indications, that the slg^ial will be obeyed and where, because of a concealed heavy load, the latter does not heed It, and a collision results, he may properly be held for the damage caused. Koester v. Decker, 23 Misc., 353. As to street cars meeting at right angles. Loudon v. Eighth Avenue R. R. Co., 16 App. Div., 152. The fact that a colliding vehicle was proceeding at a speed greater than an ordinance allowed may be considered by the jury. Sheehy v. Utah Stage Co., 15 Misc., 21, and see Keck v. Sandford, 2 Misc., 484. The Highway Law. 147 The rule as to passing a vehicle from the rear had been decided before the statute as follows: " If there be sufficient room to pass on either side, it is the duty of the foremost driver to furnish it on request by yielding half the road if practicable, but if not then practicable, it may be deferred until the parties arrive at a place more favorable to its accom- plishment." Burnham v. Butler et al., 31 N. Y., 480; Adolph v. Cent. Park, N. & E. Eiv. R. K. Co., 76 N. Y., 530; Brennan v. Richardson, 38 App. Div., 463. And there was no duty for a person passing from the rear to go upon the left side. Savage v. Gerstner, 36 App. Div., 230. The statute now prescribes the side to which the foremost driver shall turn and the side upon which the rear driver shall pass, and, in accord- ance with the change in subd. " A " makes the rule applicable to riders of horses or other animals. It has been held that a person driving along a highway, who knows that a driver approaching from the rear desires to pass him, is bound to use reasonable care to avoid injuring the driver so overtaking him, and if he crowds the rear driver against the curb and overturns his vehicle he is liable for the resulting injuries. Brennan v. Richardson, 38 App. Div., 463, and see Crabtree v. Otterson, 32 App. Div., 393. The reckless speed of a rear wagon resulting in injury to the vehicle passed may render the rear driver liable. Northridge v. Atlantic Avenue R. R. Co., 15 Misc., 66. So also when the foremost wagon was drawn up to the curb and was motionless. Axlebrood v. Rosen, 31 Misc., 353. The statute requiring carriages, when meeting in the highway to turn to the right, has no application to the meeting of railroad cars with common vehicles in the streets of a city and where railroads are laid lengthwise upon a street or highway, it is not unlawful for com- mon vehicles to travel upon the track, across it or lengthwise. Hegan V. Eighth Avenue Railroad Company, 15 N. Y., 380, and see Rooks v. Houston, West St., ietc, R. R. Co., 10 App. Div., 98; and cases under next two paragraphs. An electric car has no paramount right of way at a point where two streets intersect. Huber v. Nassau Electric R. R. Co., 32 App. Div., 426; Buhrens v. Dry Dock, etc., R. E. Co., 53 Hun, 571; afEd., 125 N. Y., 702; Bresky v. Third Avenue R. B. Co., 16 App. Div. 83; Hergert v. Union Railway Co., 25 App. Div., 318. But it has where one street bisects but does not intersect another street. Hewlett v. Brooklyn Heights E. E. Co., 63 App. Div., 428; unless there is a practical continuation of the bisecting street. Beilly v. B. H. R. R. Co., 65 App. Div., 453; Sessellmann v. M. S. Ry. Co., 65 Id., 484; and see Dunican v. Union Eadlway Co., 39 App. Div., 497. The rights of drivers of vehicles and the rights of cable cars are recip- rocal. Kennedy v. Third Avenue R. R. Co., 31 App. Div., 30. 148 The Highway Law. See also as to the rights of street cars as regards travel. Hewlett v. Brooklyn Heights E. E. Co., 63 App. Div., 433; Black v. Staten Island Electric E. E. Co., 40 App. Div., 238; Lorickio v. Brooklyn Heights E. E. Co., 44 App. Div., 688; Zingrebe v. Union Eailway Co., 44 App. Div., 577; Hickman v. Nassau Electric E. E. Co., 36 App. Div., 376; Dunican v. Union Eailway Co., 39 App. Div., 497; Hicks v. Nassau Electric E. E. Co., 47 App. Div., 479. As to ordinances giving a right of way to ambulances, see Dillon v. Nassau El. E. E. Co., 59 App. Div., 614, and Byrne v. The Knickerbocker Ice Co., 21 N. Y. S. B., 469; aft'd., 121 N. Y., 700; Penal Code, § 432. § 158. Intemperate drivers not to be engaged.— No person owning any carriage for the conveyance of passengers, running or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage, who is addicted to drunkenness, or the excessive use of spirituous liquor; and if any such owner shall violate the provisions of this section, he shall forfeit at the rate of five dollars per day, for all the time during which he shall have kept any such driver in his employment. Eevised from 1 E. S., ch. 20, tit. 13, § 2. See Whitaker v. Eighth Avenue E. E. Co., 51 N. Y., 295, in notes to § 161, post. § 159. Drivers, when to be discharged.— If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such, a degree as to endanger the safety of the passengers in the carriage, the owner of such carriage shall, on receiving written notice of the fact, signed by any one of said passengers, and certified by him on oath, forthwith discharge such driver from his employment; and every such owner, who shall retain, or have in his senace within six months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in his employment after receiv- ing such notice. Eevised from 1 E. S., ch. 20, tit. 13, § 3. For recovery of penalties generally, see § 164, post. The Highway Law. 149 § 160. Leaving horses without being tied. — No driver of any carriage used for the purpose of conveying passengers for hire, shall leave the horses attached thereto, while passengers remain in the same, vdthout first making such horses fast with a sufficient halter, rope or chain, or by placing the lines in the hands of some other person, so as to prevent their running; and if any such driver shall offend against the provisions of this section, he shall forfeit the sum of twenty dollars. Kevised from 1 E. S., ch. 20, tit. 13, § 5. For recovery of penalties generally, see section 164, post. That one who leaves a horse unattended in a, public street may be guilty of contributory negligence barring his recovery for injury to the horse vchile so unattended; and that the fact that a defendant left his horse unattended and it ran avs'ay is a fact that requires explanation by him in order to free himself from an inference of negligence, see Davis V. Kallfelz, 22 Misc., 602. § 161. Owners of certain carriages liable for acts of drivers.— The owners of every carriage running or traveling upon any turn- pike, road or highway, for the conveyance of passengers, shall be liable jointly and severally, to the party injured, for all injuries and ■damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the accident occa- sioning such injury or damage be willful or negligent, or otherwise, in the same manner as such driver would be liable. Revised from 1 E. S., ch. 30, tit. 13, § 6. At common law the liability of the owner of a vehicle used for the -transportation of persons was limited to those injuries resulting from the driver's misjudgment or negligence only, and this while he was •engaged on behalf of the owner as a driver. Whitaker v. Eighth Avenue E. E. Co., SI N. Y., 295. That this section does not apply to the driver of a street car, see Whit- aker V. Eighth Avenue E. E. Co., supra. Nor does it apply to a conductor on a street railway. Isaacs v. Third Avenue E. E. Co., 47 N. Y., 122. § 162. Term "carriage" defined.— The term "carriage" as used in this article, shall be construed to include stage coaches. 150 The Highway Law. wagons, carts, sleighs, sleds, automobiles or motor vehicles, and every other carriage or vehicle used for the transportation of per- sons and goods, or either of them, and bicycles, tricycles, and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline or other source of energy. Revised from 1 R. S., ch. 20, tit. 13, § 7, and L. 1887, ch. 704, § 1; amd. L. 1901, ch. 531, § 1. See Motor Vehicle law, p. 306a et seq., post. See Books v. Houston, West St., etc., E. R. Co., 10 App. Div., 98, in notes to § 163, post. § 163. Entitled to free use of highways. — The commissioners, trustees, or other authorities having charge or control of any high- way, public street, park, parkway, driveway or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation, by which any person using a bicycle or tricycle^ shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, park, parkway or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speed- way or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tri- cycles in highways, public streets, driveways, parks, parkways and places, or the regulation of the speed of carriages, vehicles, or engines in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city nor prevent any such commis- sioners, trustees, or other authorities in any other city from regu- lating the speed of any vehicles herein described in such manner as to limit and determine the proper rate of speed with which such vehicles may be propelled, nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances nor to prohibit the use of any vehicle upon that part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. Revised from L. 1887, eh. 704, §§ 1, 3; amd. L. 1901, ch. 531, § 1; L. 1903, eh. 625, § 1; L. 1904, ch. 540, § 1; in effect May 3, 1904. See Motor Vehicle Law, p. 206a et seq., post. The Highway Law. 151 For penal provisions as to driving vehicles and riding bicycles upon sidewalks or sidepaths and driving automobiles at excessive speed, see Penal Code, §§ 653, 652a, 666. Act to regulate the use of bicycles, tricycles, etc. L. 1899, ch. 634. For penal provisions as to placing injurious substances in a highway, see Penal Code, § 654a. That village trustees may license bicyclists to ride on sidewalks and that the village does not thereby necessarily incur a liability for the acts of the licensees. Lechner v. Village of Newark, 19 Misc., 452. A bicycle may not be ridden upon a sidewalk without authority or necessity, whether in a city, or village, or in the country, but in order to sustain a conviction, it is necessary to show that the sidewalk was on a public highway. People v. Meyer, 26 Misc., 117. And that the act was wilful and unlawful. Id.; Puller v. Kedding, 16 Misc., 634; 13 App. Div., 61. It was held before this statute that it was the duty of the driver of an automobile to stop his vehicle under circumstances indicating the likeli- hood of danger to others. The same case also considers the general duties of an automobilist that would be controlling upon general princi- ples under the present statute. It says that the driver must exercise " that degree of prudence in the management and consideration for the rights of others which is consistent with safety." Knight v. Lanier, 69 App. Div., 454. That the city park department cannot prevent the use of " The Speed- -way " bj' horsemen and landaxis during reasonable hours, but may exclude "bicycles. See Doll \. Devery, 27 Misc., 149. A person may lawfully ride a bicycle on a cable " slot." Rooks v. Hous- t;on, West St., etc., K. K. Co., 10 App. Div., 98. § 164. Penalties, how recovered.— All penalties or forfeitures given in this chapter, and not otherwise specially proYided for, shall be recovered by the commissioners of highways, in the name of the town in which the offense shall be committed; and when recovered, shall be applied by them in improving the highways and bridges in such town. Kevised from 1 R. S., ch. 16, tit. 1, art. 7, § 131. See Motor Vehicle Law, p. 206a et seg., post. As to penalties against overseers generally, see § 23, ante. As to duty of commissioners to prosecute for penalties and general ■provisions, see § 33, ante. For list of penalties under this act, see index, " Penalties." Summons must be indorsed with reference to the statute under which -the penalty is sought. Hitchman v. Baxter, 34 Hun, 271. 152 The Highway Law. There can be no joint action by towns to recover penalties. The action must be by the town in which the offense was committed. Bradley v. Blair, 17 Barb., 480. Penalties when recovered do not belong to the commissioner. Albro v. Rood, 24 Hun, 72. [§ 165. Extent of this chapter. — This section has never been enacted, though the schedule of sections shows that it was originally contemplated.] § 165. Stone and rubbish not to be dumped in highways.— No stone or other rubbish shall be drawn to and deposited within the limits of any highway, except for the purpose of filling in a depression or otherwise improving the highway, with the consent of the commissioner of highways and under the direction of a com- missioner or overseer of highways. Added by L. 1898, ch. 352. § 166. Registration by owners of automobiles.— [This sec- tion, which was added to the highway law by section two of chap- ter five hundred and thirty-one of the laws of nineteen hundred and one and amended by section two of chapter six hundred and twenty-five of the laws of nineteen hundred and three, has been repealed by section two of chapter five hundred and forty of the laws of nineteen hundred and four, which went into effect May 3, 1904.J See Motor Vehicle I^aw, p. 206a et seq., post. § 167. Use of highways by automobiles. — [This section, which was added to the highway law by section two of chapter five hundred and thirty-one of the laws of nineteen hundred and one, has been repealed by section two of chapter five hundred and forty of the laws of nineteen hundred and four, which went into effect May 3, 1904. J See Motor Vehicle Law, p. 206a et seq., post. § 168. Brakes and lamps on automobiles. — [This section, which was added to the highway law by section two of chapter five hundred and thirty-one of the laws of nineteen hundred and one, The Highway Law. 153 has beeoa repealed by section two of chapter five hundred and forty of the laws of nineteen hundred and four, which went into effect May 3, 1904.J See Motor Vehicle Law, p. 206a et seq., post. § 169. Stop automobile on signal. — [This section, which was added to the highway law by section two of chapter five hundred and thirty-one of the laws of nineteen hundred and one and amended by section three of chapter six hundred and twenty-five of the laws of nineteen hundred and three, has been repealed by section two of chapter five hundred and forty of the laws of nine- teen hundred and four, which went into effect May 3, 1904.] See Motor Vehicle Law, p. 206a et seq., post. § 169a. Licenses or permits for automobiles. — [This sec- tion, which was added to the highway law by section two of chapter five hundred and thirty-one of the laws of nineteen hundred and one aiid amended by section four of chapter six hundred and twenty-five of the laws of nineteen hundred and three, has been repealed by section two of chapter five hundred and forty of the laws of nineteen hundred and four, which went into effect May 3, 1904.J See Motor Vehicle Law, p. 206a et seq., post. § 169b. Penalties. — [This section, which was added to the highway law by section two of chapter five hundred and thirty-one of the laws of nineteen hundred and one and amended by section five of chapter six hundred and twenty-five of the laws of nineteen hundred and three,* has been repealed by section two of chapter five hundred and forty of the laws of nineteen hundred and four, which went into effect May 3, 1904.J See Motor Vehicle Law, p. 206a et seq., post. ♦Section 6, of the amendatory act of 1903 (L. 1903, ch, 625), re- peals all inconsistent acts regTilating the speed of motor vehicles. That section became effective May 15, 1903, and reads as follows; § 6. All acts or parts of acts regulating the speed of motor vehicles, inconsistent herewith, are hereby repealed. 154 The Highway Law. AKTICLE VII. Regulation of Feebies. Section 170. Licenses. 171. Undertaking'. 172. Appendages for rope ferries. 173. Superintendent of public works may lease right of passage. 174. When schedule to be posted. § 170. Licenses. — The county court in each of the counties of this state, or the city court of a city, may grant licenses for keeping ferries in their respective counties and cities, to such persons as the court may deem proper, for a term not exceeding five years. No license shall be granted to a person, other than the owner of the land through which thai part of the highway adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight days written notice froi» such other person of the time and place at which he will apply for such license, or having obtained such license, shall neglect to com- ply with the conditions of the license, or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk; and a certified copy thereof shall be delivered to the person licensed. When the waters over which any ferry may be used, shall divide two counties or cities, or a county and city, a license obtained in either of the counties or cities shall be sufiicient to authorize transportation of persons, goods, wares and mer- chandise, to and from either side of such waters. Eevised from 1 E. S., ch. 16, tit. 2, §§ 1-3, 5-9. Additional provisions as to ferry corporations. Trans. Corp. L., §§ l-6b. As to regulation of ferries by boards of supervisors, see County Law, ! 78, post. Maintenance of a ferry without authority is a misdemeanor. Penal Code, § 415. A ferry may not be maintained without legislative authority. Power v. Village of Athens, 99 N. Y., 592; Mayor, etc., of N. Y. v. Starin, 106 N. Y., 1. But an occasional carrying of passengers across waters to private grounds not connected vdth a highway is not a violation of § 416, Penal Code. People v. Mago, 69 Hun, 559. The Highway Law. 155 The Legislature may grant to a city exclusive power to establish and regTilate ferries, subject to the power of the Legislature to revoke. Aikin V. Western K. E. Co., 20 N. Y., 370; Matter of Union Ferry Co., 98 N. Y., 139. Or it may make an irrevocable grant thereof. Mayor, etc., of N. Y. v. Starin, 106 N. Y., 1. But a mere grant of ferry rights does not imply that they are exclusive. Power V. Village of Athens, 99 N. Y., 593. A ferry may or may not have several termini on one shore. Mayor, etc., N. Y. V. New Jersey Steamboat Nav. Co., 106 N. Y., 28. That the right to maintain a ferry may be acquired by prescription, see Wiswall V. Wandell, 3 Barb. Ch., 312. § 171. Undertaking. — Every person applying for such license shall, before the same is granted, execute and file with the clerk of the court his undertaking, with one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct. Eevised from 1 E. S., ch. 16, tit. 2, § 4. Breach of this undertaking is a misdemeanor. Penal Code, § 415, subd. 2. § 172. Appendages for rope ferries. — Any person licensed to keep a ferry may, with the written consent of the commis- sioners of highways of the town where such ferry may be, erect and maintain within the limits of the highways, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages, for a rope ferry. Eevised from L. 1861, ch. 30, § 1. §173. Superintendent of public worls county, and the amount expended thereon under contracts approved by him. 6. Such other matters in connection with the highways and bridges of his county as may seem to him of importance. The board of supervisors may require a further report or other information concerning the highways and bridges of such county. Added, L. 1902, ch. 396, § 1. § 189. Adoption of resolution to return to former system.— At any time after the expiration of five years from the passage of a resolution adopting the provisions of this article, a resolu- tion may be passed by such board of supervisors at its annual meeting to return to the former system of controlling and regu- lating the affairs of the towns of such county, relating to highwayi and bridges. Upon the adoption of such resolution the office of county engineer shall be abolished, and the provisions of the high- way law and all other statutes relating to highways and bridges shall be applicable to the highways and bridges of such county a» if the board of supervisors thereof had not adopted the provisions of this article. Added. L. 1902, ch. 396, § 1. II 162 The Highway Law. ARTICLE IX.* Repealing and Othee Laws. Section 200.** Laws repealed. 201.** Saving clause. 202.** Construction. 203.** When to take effect. Schedule. § 200. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed. Formerly § 180, remimbered L. 1902, ch. 396, § 2. § 201. Saving clause. — The repeal of a law, or any part of it specified in the annexed schedule, shall not affect or impair any act done, or right accruing, accrued, or acquired, or penalty, for- feiture, or punishment incurred prior to the time when this act takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prosecuted, or inflicted, as fully and to the same extent, as if such laws had not been repealed; and all actions or proceedings, civil or criminal, commenced under or by virtue of the laws so repealed and pending February twenty- eighth, eighteen hundred and ninety-one, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially pro- vided by law. Formerly § 181, renumbered L. 1902, ch. 396, § 2. See Jldsall v. Howell, 86 Hun, 424, and 'lown of 'Wheatfield v. Shasley, 23 Misc., 100. § 202. Construction. — The provisions of this chapter, so far as they are substantially the same as those laws existing on Febru- • Formerly Art. VIII; renumbered L. ItOi, ch. SiXS, { g. •• See Stat. Conet. L., i 34. The Highway Law. 163 ary twenty-eighth, eighteen hundred and ninety-one, shall be construed as a continuation of such laws, modified or amended, according to the language employed in this chapter, and not as new enactments; and references in laws not repealed to provisions of law incorporated into this chapter and repealed, shall be con- strued as applying to the provisions so incorporated: Nothing in this chapter shall be construed to amend or repeal any provision of the Penal or Criminal Code. Formerly § 182, renumbered L. 1902, ch. 396, § 2. §203. When to take effect. — This chapter shall take effect on the first day of March, eighteen hundred and ninety-one. Formerly § 183, renumbered L. 1902, ch. 396, § 2. 164 The Highway Law. SCHEDULE OE LAWS EEPEALED. Revised Statutes. . Part I, chapter 16 All. Eevised Statutes. . Part I, chapter 20, title 13, All. Laws of Chapter Sections 1832 107 All. 1833 149 All. 1832 274 All. 1834 267 All. 1835 154 All. 1836 122 All. 1837 431 AU. 1837 431 All. 1840 300 All. 1841 225 All. 1845 180 5, 6, 7, 9, 12, 13, 14. 1847 455 3, 4, 5, 6, 7, 8, 9, 11, 12,20,21,22,23. 1853 63 All. 1853 135 All. 1853 174 All. 1855 255 All. 1857 383 All. 1857 491 All. 1857 615 1. 1857 639 All. 1858 51 All. 1858 103 All. 1860 61 All. 1860 468 All. 1861 30 All. 1861 311 All. 1862 243 All. 1863 93 All. 1863 444 All. 1864 395 All. 1865 442 All. The Highway Law. 165 LawB of Chapter Sections 1865 522 7. 1866 180 All. 1866 770 All. 1868 791 All. 1868 843 All. 1869 24 All. 1869 131 1. 1869 593 All. 1870 461 All. 1872 274 1. 1873 63 All. 1873 69 All. 1873 395 All. 1873 448 All. 3873 477 All. 1873 773 All. 1874 169 All. 1874 570 All. 3 875 22 All. 1875 196 ■ All. 1875 341 All. 1876 340 All. 1876 348 All. 1877 197 All. 1877 344 All. 1878 44 All. 1878 49 All. 1878 114 All. 1878 245 All. 1879 67 All. 1880 114 All. 1880 305 All. 1880 308 All. 1880 503 All. 1881 233 All. 1881 513 All. 1G6 The Highway Law. Laws of Chapter Sections 1881 696 All. 1881 700 All. 1883 346 All. 1883 371 All. 1883 398 AU. 1884 220 All. 1884 251 All. 1884 , 359 All. 1884 396 All. 1884 479 All. 1886 269 All. 1886 344 All. 1886 422 All. 1886 452 All. 1887 471 All. 1887 526 AU. 1887 704 All. 1888 240 All. 1888 260 All. 1889 120 All. 1889 146 All. 1889 259 All. Constitutional and General Provisions Relating to Highways. COlSrSTITUTION OF THE STATE OF NEW YOKK. Article I. § 7. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes. Article III. § 18. The legislature shall not pass a private or local bill in any of the following cases: ******* Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands. ******* Providing for building bridges, and chartering companies for such purposes, except on the Hudson river below Waterford, and 168 The Highway Law. on the East river, or over tlie waters forming a part of the bound- aries of the state. ******* But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to con- struct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the supreme court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or oper- ated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Article XIII. § 1. Members of the legislature, and all ofiicers, executive and judicial, except such inferior officers as shall be by law exempted shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of office of , according to the best of my ability; " and all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto, as part thereof: "And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to~ said office, and have not made any promise to influence the giving or withholding any such vote," and no other oath, declaration or test shall be required as a qualification for any office of public trust. The Highway Law. 169 THE COUNTY LAW. (L. 1892, ch. 686.) § 12. General powers.— The board of supeiwisors shall: 7. Make such laws and regulations as they may deem neces- sary for the destruction of wild and noxious animals and weeds, within the county. § 60. Limitation of article.— This article* shall not apply to bridges on the Hudson river below Waterford, or on the East river, or over the waters forming a part of the boundaries of the state. Special legislation for building bridges allowed over waters excepted by this section, and prohibited elsewhere, Const., art. 3, § 18, page 167, ante. § 61. County highways and bridges.— A board of supervisors shall, on the application of twenty-five resident tax-payers, when satisfied that it is for the interest of the county, lay out, open, alter, or discontinue a county highway therein, or cause the same to be done, and construct, repair, or abandon a county bridge therein, or cause the same to be done, when the board shall deem the authority conferred on commissioners of highways insufficient for that purpose, or that the interests of the county will be promoted thereby. All expenses so incurred shall be a county charge. Such powers shall not be exercised unless the applicants therefor shall prove to the board the service of a written notice, personally or by mail, on a commissioner of highways of each town in the county, at least twelve days prior to the presentation of such application, specifying therein the object thereof; and when the application is to lay out a highway, or construct a bridge, the route or location thereof; and in all other cases, a designation of the highway or bridge to be affected thereby. Application and order, forms Nos. 57, 58, post. § 62. Location and construction of bridges.— ^ The board may authorize the location, change of location and construction of any bridge, applied for by any town or towns, jointly, or by other • S§ 60-81 hereof. 170 The Highway Law. tlian a miinicipal corporation, created under a general law, or by any corporation or individual for private purposes; and if a public bridge, erected other tban by a municipal corporation, establish the rates of toll for crossing such bridge; but if such bridge is to cross a navigable stream, provision shall be made in the resolution or permission authorizing the same, for the erection and maintenance of a suitable draw, to prevent any obstruction of the navigation of such stream; and if a private bridge, provision shall be made that the draw shall be kept open as may be required to permit all vessels to pass without loss of headway. "When such bridge shall be intersected by the line of counties, the action of the board of supervisors of each county shall be necessary to give the jurisdic- tion herein permitted. But this section shall not apply to a pier bridge erected or to be erected over the Mohawk river above the state dam by a corporation organized under the transportation corporations law, provided such corporation shall comply with all the provisions of said transportation corporations law applicable thereto; such a corporation, without further proceeding, shall have the right to erect and maintain piers in said river for the purposes of such a bridge. Amd. L. 1898, ch. 225. § 63. County aid to towns for the construction and repair of bridges. — If the board of supervisors of any county shall deem any town in the county to be unreasonably burdened by its expenses for the construction and repair of its bridges, the board may cause a sum of money, not exceeding two thousand dollars in any one year, to be raised by the county and paid to such town to aid in defraying such expenses. § 64. Construction by county of destroyed bridges.— If any bridge within a county, or intersection by any boundary line of a county, shall be destroyed by the elements, and the board of super- visors of the county shall deem that the expenses of the construc- tion of a new bridge at or near the site of the bridge so destroyed would be too burdensome upon the town or towns within such county, which would otherwise be liable therefor, the board of The Highway Law. 171 supervisors of any sucli county may provide for the construction and completion of a bridge and all necessary approaches thereto, at or near the site of the bridge so destroyed. If the bridge so destroyed shall have been constructed by a corporation created under a general law, and the site thereof, and of the approaches thereto, or either, shall be the property of such corporation, such board of supervisors may purchase the interest of such corporation, or any other person, in such site or approaches, if such purchase can be accomplished upon reasonable terms; but if such site or approaches cannot be lawfully acquired by such purchase, or other- • wise, upon reasonable terms; such board may acquire title to premises on either side of such site, and provide for the construc- tion of a bridge and approaches thereto, at such place, at the expense of the county, or of the two counties jointly, as the case may be, provided such bridge shall be so located as not to increase the distance to be traveled upon the highway to reach each end of such bridge more than five rods. Any board of supervisors providing for the construction of any such bridge may determine by resolution whether the expenses of the maintenance and repair thereof shall thereafter be a county charge, or a charge upon such town or towns. § 65. Apportionment of expenses when a bridge is inter- sected by town or county lines.— If any public free bridge,, intersected by the boundary line of a county, shall also be inter- sected by the boundary line of two or more towns in such county^ the board of supervisors of such county shall apportion as it shall deem equitable, between such towns, their respective shares of the expenses of the construction, maintenance and repair of such bridge, and the amount to be received by each town, of the money raised by the county to be paid toward defraying the expenses of constructing and repairing such bridge. § 66. County's share of expenses to be raised and paid to the commissioners of highways of the town.— The board of supervisors shall cause to be raised and collected the amount to be paid by the county to any town toward the expenses of a bridge and when collected the same shall be paid to the commissioners of 172 The Highway Law. highways of the towu, to be applied by them toward the payment of such expenses. § 67. May authorize a town to construct a bridge outside of a boundary line. — The board of supervisors of any county may authorize any town, on a vote of a majority of the electors thereof voting at a regular town meeting, to appropriate a sum, or pledge its credit, to aid in, or wholly construct and maintain a bridge outside the boundaries of the town or county, or from or within the boundary line of any town into another town or county, but forming a continuation of highways leading from such town or county, and deemed necessary for the public convenience. § 68. Bridges over county lines.— The board shall provide for the care, maiatenance, preservation and repair of any draw or other bridge intersecting the boundary line of counties or towns, and which bridge is by law a joint charge on such counties or towns, or on the towns in which it is situated; and to severally apportion, as it may deem equitable, the expense thereof on the towns respectively liable therefor, or on the respective counties when liable; but when such bridge shall span any portion of the navigable tide-waters of this state, forming, at the point of cross- ing, the boundary line between two counties, such expense shall be a joint and equal charge upon the two counties in which the bridge is situated, and the board of supervisors in each of such counties shall apportion such expense among the several towns and cities in their respective counties, or upon any or either of such towns and cities, as in their judgment may seem proper; and if there be in either of said counties, a city, the boundaries of which are the same as the boundaries of the county, then it shall be the duty of the common council of such city, to perform the duty hereby imposed upon the boards of supervisors; but no town or city not immediately adjacent to such waters, at the points spanned by said bridge, shall be liable for a larger proportion of such expense than the taxable property of such town or city bears to the whole amount of taxable property of such county. The board of supervisors of such counties or in any city embracing the entire county, and having no board of supervisors, the com- The Highway Law.- 173 moD. council shall have full control of such bridges. No such bridge shall be constructed unless the board of supervisors in each of such counties, and the common council of the city whose bound- aries are the same as the boundary of the other county adjacent to such waters, shall first by resolution determine that such bridge is necessary for public convenience, in which case such common council, with the consent of the mayor, may authorize the issue of bonds for the purpose of constructing such bridge, to be issued as other bonds are issued in said city. Whenever any bridge now spanning any such navigable tide-waters or hereafter erected across any such navigable tide-waters shall be condemned by the United States authorities as an obstruction to navigation, and shall be ordered removed, the county and city authorities having charge of such bridge, if they shall determine that such bridge shall be rebuilt, shall, as soon as practicable after such determination, cause plans to be prepared for the erection of the new bridge and the removal of any bridge so condemned as aforesaid, and within a reasonable time after the approval of any such plan by the United States authorities, the proper officers shall proceed with the con- struction of said new bridge. In case of any unreasonable delay on the part of the officer or officers charged with the duty of con- struction of such new bridge, such duty may be enforced by mandamus upon the application of any citizen interested in its performance. Amd. L. 1896, ch. 995. § 69. Authorize towns to borrow money. — The board may upon the application of any town, liable or to be made liable to taxation, in whole or in part, for constructing, building, repairing or discontinuing any highway or bridge therein, or upon its bor- ders, pursuant to a vote of a majority of the electors of such town at an annual town meeting, or special town meeting, called for that purpose, taken pursuant to sections thirty, thirty-one and thirty-two of the town law ; or upon the written request of the com- missioners of highways and town board of such town or towns, and said vote of a majority of said electors, in a case arising under section ten of the highway law, where the highway or bridge has not been already repaired or rebuilt, authorize such town or towns to construct, build, repair, or discontinue such highway or bridge, and authorize said toAvn or towns to borrow such sums of money therefor, for and on the credit of such town or towns as may be necessary according to a written estimate in items of the fair cost and expense thereof. Said board may also on the applica- tion of any town or towns, authorize them to borrow such sums of 174 Tna Highway Law. money for and on the credit of such tuM-n or toAras as may be neces- sary to pay any debt lawfully incurred by or on behalf of such town or towns. In a case arising under section ten of the highway law, where the highway or bridge has actually been built or re- paired, the application shall be accompanied by the certificate and audit provided by sections eleven and twelve of the highway law. In all other cases the application shall be accompanied by the cer- tificate of the town board of the subject, occasion and amount of the indebtedness, and, as far as practicable, with tlie items, vouch- ers and audits thereof. If said town or towns contain any portion of the lands of the forest preserve, said board shall not authorize said tovm or towns, to borrow any such money without the written approval of the forest, fish and game commission, except to pay a debt of Hie town incurred in good faith pursuant to section ten of the highway law. If such highway or bridge shall be situated in two or more towns in the same county, the board shall apportion the expense among such towns in such proportion as shall be just Amd. L. 1894, ch. 163; L. 1896, ch. 1T8; L. 1900, ch. 12; L. 1903, ch. 469. § 69a. Authorize towns to purchase roads or toll bridges.— The board may authorize a town or towns to purchase for public use, any planli road, turnpike, toll road or toll bridge in such town, and may authorize the company owning the same, or any part thereof, or the franchise thereof, and to authorize such town or towns to borrow such sums of money as may be necessary therefor for or on the credit of such towns, after the same shall have been directed by a vote of a majority of the electors at a town meeting, or a special town meeting as provided in section sixty-nine. Added L. 1903, ch. 469. § 70. The raising and expenditure of moneys.— The board shall, from time to time, impose upon the taxable property of such towns suflScient tax to pay such obligations as they shall become due. The supervisor and town clerk shall each keep a record, showing the date and amount of the obligations issued, the time and place of their payment, and the rate of interest thereon. The obligations shall be delivered to the supervisor of the town, who shall dispose of the same for not less than par, and pay the proceeds thereof to the commissioners of highways of the town, or to such other oflScer as shall be designated by the board of super- visors, to be used by them for the purposes for which the same were appropriated; but not more than five hundred dollars of such proceeds shall be expended upon any highway or bridge, except in pursuance of a contract made by a contractor with the The Highway Law. 175 commissioners of highways of the town, or other officer designated by the board of supervisors, and approved by the town board, no member of which shall be interested therein. If such highway or bridge shall be wholly or partly within the limits of an incor- porated village, the consent of a majority of the trustees of such village shall be necessary for the action of the board of supervisors as herein provided. § 71. Streets outside of city limits. — When any territory in a county containing an incorporated city of one hundred thousand inhabitants, excepting the towns of Flatbush and New Lots in the county of Kings, has been mapped into streets and avenues, pur- suant to law, the board of supervisors may authorize the establish- ment of a plan for the grade of such streets and avenues, laying out, opening, grading, constructing, closing and change of line of any one or more of them, and provide for the assessment on property intended to be .benefited thereby, and fixing assessment districts therefor, and of the levy, collection and payment of the amount of damages sustained and the charges and expenses incurred, or which may be necessary to incur in carrying out such provisions, but such last named power in regard to laying out, opening, grading, constructing and change of line, of such streets or avenues or defraying the expenses thereof, shall only be exer- cised on the petition of the property owners, who own more than one-half of the frontage on any such street or avenue, or on a certificate of the town board and commissioners of highways of the town, that the same is, in their judgment, proper and necessary for the public interest. If the streets and avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, a like certificate shall be required of the tovsoi board and commissioners of highways of each town. Before making such certificate, such town board, or boards and commissioners of highways, shall give ten days' notice by publication in one of the daily papers of the county, and by conspicuously posting in six public places in each of such towns, of the time and place at which they will meet to consider the same, at which meeting the public, and all persons interested, may appear and be heard in relation thereto. ISTo such street or avenue shall be laid out, opened or constructed, upon or across any lands acquired by the right' of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by a corporation formed for the purpose of improving the breed of horses, without the consent of such corporations. N'o town ofiicer shall charge anything for his services under this section, nor shall any charge 176 The Highway Law. be made against any sucli town or tlie property therein, for the expense of the publication of the notice herein required. § 12. Survey and records of highways. — The board may authorize and direct the commissioners of higliways of any town, to cause a survey to be made, at the expense of the town, or* any or all of the highways therein, and to make or complete a systematic record thereof, or to revise, collate and rearrange existing records of highways, and correct and verify the same by new surveys and to establish' the location of highways by suitable monuments. Such records so made, or revised, corrected and verified shall be deposited with the town clerk of the town, and shall thereafter be the lawful records of the highways which they describe; but shall not affect rights pending in any judicial proceeding com- merced before the deposit of such revised records with the town clerk. § 73. Regulation of toll rates. — Such boards shall have power, by a vote of two-thirds of all the members elected to authorize an alteration, reduction or change of the rates of toll charged or received by any turnpike, plank or gravel road, or other toll road within such county, or by any bridge company or ferry within such county, or, if within more than one county, then by joint action with the supervisors of such counties, provided such altera- tion shall be asked for by the directors, trustees or owners of such road, bridge or ferry; but that no increase of toll shall be so authorized unless notice of intention to apply for such increase shall have been published in each of the newspapers published in such county, once in each week for six successive weeks next before the annual election of supervisors in such county; and any altera tier, in rates of toll authorized by any board of supervisors may be changed or modified by any subsequent board, on their own motion, by a like vote of two-thirds of all the members elected to such board ; but nothing herein contained shall affect or abridge the powers of any city. • So in the original. The Highway Law. 177 § 74. Highways in counties of more than 300,000 acres of unimproved land. — The board may establish separate highway districts in counties containing more than three hundred thousand acres of unimproved unoccupied forest lands, for the purpose of constructing highways through such lands; such highway districts to be established upon the application of the owners of more than one-half of the non-resident lands therein. Any such highway district shall consist of contiguous tracts or parcels of land, and may include parts of one of* more towns; and they may be changed, altered or abolished at any time by the board. Such board may appoint one or more commissioners to lay out and con- struct such highways in any such district, and prescribe the powers and duties, and direct the manner in which highway taxes- shall be assessed, levied and collected upon the lands within the district, and the manner of expenditure thereof. They may also authorize such commissioners to borrow money on such terms as they may deem just, but not exceeding the amount of ten years' highway taxes upon such lands; and may, for the purpose of repaying such loan, set apart and appropriate the high- way taxes upon such lands, for a period not exceeding ten years from the time of making such loan. § 75. Appropriation of certain non-resident highway taxes. — The board may, upon the application of the owners representing a majority in value, as shall be ascertained from the last annual assessment-roll of the real estate lying along the line of any highway, laid out through unimproved lands, in the cases not provided for in the last preceding section authorize the appro- priation of the non-resident highway tax on the lands lying along such line, for the improvement of such highways. § 76. Balance of state appropriations.— The board may direct the expenditure of any non-resident highway or bridge tax, set apart by an act of the legislature, in counties wherein such non- resident lands are situated, when the official life of commissioners appointed to receive and expend such taxes has expired. • So In the original. J2 178 The Highway Law. § 77. Alteration of state roads. — The board may authorize the commissioners of highways of any town in their county to alter or discontinue any road or highway therein, which shall have been laid out by the state under the same conditions that would govern their actions in relation to highways that have been laid out by local authorities. § 78. Further powers. — The board may make such other local and private laws and regulations concerning highways, alleys, bridges and ferries within the county, and the assessment and apportionment of highway labor or taxes therefor, not inconsistent with law, as it may deem necessary and proper, when the purposes of such laws and regulations can not be accomplished under the foregoing provisions, or general laws of the state. § 79. Powers as to tires on vehicles. — The board of super- visors may enact local and private laws regulating the width of tires used on vehicles built to carry a weight of fifteen hundred pounds or upwards, and may provide penalties for the violation thereof. Added, L. 1894, ch. 644; amd. L. 1899, ch. 155. § 80. [Use of abandoned turnpikes, etc.]— Boards of super- visors shall have power to provide for the use of abandoned turn- pike, plank or macadamized roads within any town as public high- ways ; but jurisdiction in such a case shall not be exercised without the assent of two-thirds of all the members elected to such board, to be determined by yeas and nays, which shall be entered on its minutes. Added, L. 1895, ch. 756. §81. Definition of words used in this article. — Wherever the words " upon its borders," are used in this article in reference to the boundary line between two towns, the same is and was intended and shall be construed to mean " upon," " along," and " across its borders." Added, L. 1900, ch. 163, in effect March 19, 1900. The Highway Law. 179 THE TOWN LAW. § 12. Election of officers. — There shall be elected at the biennial town meeting in each town, by ballot, * * * one, two or three commissioners of highways. * * * At town meetings in town held at the same time as general elections, the names of all candidates for town offices shall be voted for in the same manner and on the same ballot as candidates for other offices voted for thereat. At such town meetings no person shall be allowed to vote for candidates for town offices who is not registered and entitled to vote at such general election. Amd. L. 1893, ch. 344; L. 1897, oh. 481; L. 1898, ch. 363; L. 1901, chs. 349, 536, § 3; L. 1903, ch. 57, § 1, in effect March 19, 1903. See L. 1897, ch. 481, page 186, post, for additional provisions as to election of town officers; also People ex rel. Lovett v. Randall, 151 N. Y., 497. § 13. Term of office. — * * * commissioners of high- ways, * * * when elected, shall hold their respective offices for two years. But whenever there is or shall be a change in the time of holding town meetings in any town, persons elected to such offices at the next biennial town meeting after such change shall take effect, shall enter upon the discharge of their duties at the expiration of the term of their predecessors, and serve until the next biennial town meeting thereafter or until their successors are elected and have qualified. Whenever the time for holding town meetings in any town is changed to the first Tuesday after the first Monday in l^ovember, except when changed as provided in section fortyTthree of this chapter, the town officers elected thereat shall take office on the first day of January succeeding their election. * * * All town officers hereafter elected at a biennial town meeting held at any time between the first day of February and the first day of May shall, in case a board of supervisors thereafter adopts a resolution changing the time of holding such biennial town meetings to the first Tuesday after the first Monday in November, hold office until the first day of January succeeding the biennial town meeting first held pursuant to such a resolution. Amd. I.. 1893, ch. 344; L. 1897, ch. 481; L. 1898, ch. 363; L. 1901, ch. 391, § 2. 180 The Highway Law. § 15. Commissioners of highways. — The electors of each town may, at their biennial town meetings, determine by ballot "whether there shall be elected in their town one, two or three com- missioners of highways. Whenever any town shall have deter- mined upon having two or three commissioners of highways and shall desire to have but one, the electors thereof may do so by a vote by ballot taken at a biennial town meeting, and and* when such proposition shall have been adopted no other commissioner shall be elected or appointed until the term or terms of those in office at the time of adopting the proposition shall expire or become vacant and they may act until their terms shall severally expire or become vacant as fully as if two or three continued in office. When there shall be but one commissioner of highways in any town, he shall possess all the powers and discharge all the duties of commis- sioners of highways as prescribed by law. In towns of less than two square miles in area, where five-sixths of the territory shall consist of an incorporated village or villages, the office of highway commis- sioner is hereby abolished and the powers and duties heretofore performed by him shall devolve upon the town board of such town together with such further power and authority over highways, streets and bridges as are now possessed by or that may be here- aiter granted to boards of trustees of villages of the third class. The provisions of this act shall not affect or abridge the term of office of any highway commissioner elected prior to the passage of this act. I Amd. L. 1895, ch. 239; L. 1897, ch. 481; L. 1901, ch. 583; L. 1903, eh. 57, § 2, in effect March 19, 1903. § 21. Fence viewers. — The assessors and commissioners of highways elected in every town shall, by virtue of their offices, be fence viewers of their town. Eenumbered L. 1897, ch. 481. § 22. Powers of biennial town meetings.— The electors of each town may, at their biennial town meeting: *4f * * * * * 5. Make provisions and allow rewards for the destruction of noxious weeds and animals, as they may deem necessary, and raise money therefor. Amd. L. 1897, ch. 481. • So in the original. The Highway Law. 181 § 23. Special town meetings.— Special town meetings shall also be held whenever twenty-five taxpayers upon the last town assessment-roll shall, by written application addressed to the town clerk require a special town meeting to be called, for the purpose of raising money for the support of the poor; or to vote upon the question of raising and appropriating money for the construction and maintenance of any bridges which the town may be authorized by law to erect or maintain j * * * Amd. L. 1894, ch. 280. § 36. Balloting; electors in incorporated village when not to vote on highway questions.— When the electors vote by ballot, except in town where the biennial town meetings are held at the time of general elections, all the officers voted for shall be named in one ballot, which shall contain written or printed, or partly written or partly printed, the names of the persons voted for, and the offices to which such persons are intending to be elected, and shall be delivered to the presiding officers so folded as to conceal the contents, and shall be deposited by such officers in a box to be con- structed, kept and disposed of, as near as may be, in the manner prescribed in the general election law. When any town shall have within its limits an incorporated village, constituting a separate road district, exempt from the supervison and control of the commis- sioners of highways of the town, and from payment of any tax for the salary or fees of said commissioners, and from payment of any tax for the opening, erection, maintenance and repair of any high- way or bridge of said town, without the limits of said village, no residents of such village shall vote at any biennial or special elec- tion in such town for any commissioner of highways for said town, nor for or against any appropriation for the opening, laying out, maintenance, erection or repair of any highway or bridge in said town, without the limits of said village. At the biennial elections in such towns, the names of candidates for the office of highway commissioner shall be printed on a different ballot from the one containing the names of candidates for other town offices. Such ballots shall be indorsed " commissioner of highways," and shall be deposited, when voted, in a separate ballot box, which also shall be 182 The Highway Law. marked "commissioner of highways." Such ballots and ballot box shall be furnished by the oificers now charged by law with that duty at town elections. A poll list shall be kept by the clerk of the meeting on which shall be entered the name of each person voting by ballot. Amd. L. 1895, ch. 263; L. 1897, ch. 481; L. 1898, ch. 362. § 51. Oath of office. — Every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy. § 55. Refusal to serve as overseer of highways or pound- master. — If any person chosen or appointed to the office of over- seer of highways or pound-master shall refuse to serve, he shall forfeit to the town the sum of ten dollars. § 56. Town officers to administer oaths.— Any town officer may administer any necessary oath in any matter or proceeding lawfully before him, or to any paper to be filed with him as such officer. § 63. Undertal a resident of the town of , county, N. Y., respect- fully shows that , the overseer of highways for highway district ISTo. . . . , in said town, has neglected and refused to (warn to work on the highways in said district), after having been required so to do by the com- missioners of highways. And the said hereby requires you to prosecute the said for said offense. Dated this day of , 190. .. (Give undertaTcing as provided in § 23, ante, if it becomes necessary. For forms of achnowledgment, justification and approval see Forms Nos. 3, 4 and 5, ante. ) 234 The Highway Law. No. 38. Order Dividing Town into Commissioner Districts. ,(§ 25, ante.) At a regular {or, special) meeting of the town board of the town of , county, N. Y., duly called and held on the day of , 190 . . . Oedeeed, That said town be divided into (two or) three highway commissioner districts and assigned to the commissioners of high- ways of said town, as follows: The first highway commissioner district shall include the fol- lowing : Beginning at the intersection of the Franklin road by the South Bend bridge and continuing (continue the description until the district is fully described), and this district is assigned to , one of the said commissioners of highways. The second commissioner district shall include (continue as above, giving a brief and accurate description of the boundaries of each district). Done at said to^vn the day and year first above written. , Supervisor. , Town Clerk. , Justice of the Peace. , Justice of the Peace. Constituting said Town Board. {For the required publication of notice of division into com- missioner districts, see § 25, ante.) No. 39. Overseer's List of Inhabitants. I (§ 31, ante.) I, , overseer of highways, in District No , of the town of , county, N. Y., do hereby certify that the following is a true and accurate list of names of all the inhabitants in said highway district, who are liable to work on the highway: FOEMS 235 Names. iN'ames. Dated at said town this day of 190. Overseer of Highways. {This list to he delivered to the town clerk within sixteen days after the overseer s appointment, § 31, ante.) No. 40. List and Statement of Nou-Kesident Lands. (§ 32, ante.) We, the undersigned commissioners of highways of the town of , county, N. Y., before making the assessment for highway labor, make the following list and state- ment of the contents of all unoccupied lots, pieces or parcels of land within said town, owned by non-residents and set down oppo- site the description of the same, their respective values, such values being the same affixed to the lot in the last assessment-roll of the town, except that where any such lots were not separately valued in such roll then in proportion to the valuation which was affixed to the whole tract of which such lot is a part. Name of Tbact (see subd. 1 of note following' this form). Lot nnmbers, if tract is snbdivided (if part of lot distingaislied by boundaries or in eome other way). Quantity of land. Value of land. Dated this day of , 19 . . . Commissioners of Highways. 236 The Highway Law. Note. — Commissioners are directed to describe non-resident land in the same manner as is required from assessors. The requirement as to assessors describing non-resident land is as follows: 1. Designate the tract by its name, if known by one, or if not distingTiished by a name or the name is unknown, state by what lands it is bounded. 2. Place in the first column the numbers of all unoccupied lots of any subdivided tract, without the names of the owner, beginning at the lowest number and proceeding in numerical order to the highest, but the entry of the name of the owner shall not affect the validity of the assessment. 3. In the second column and opposite the number of each lot, the quantity of land therein. 4. In the third column and opposite the quantity, the full value thereof. 5. If it be a part of a lot, the part must be distinguished by bound- aries or in some other way by which it may be identified. If any such real property be a tract not divided or whose subdivisions cannot be ascertained by the assessors, they shall certify in the roll that such tract is not subdivided, or that they cannot obtain correct information of the subdivisions and shall set down in the proper column the quantity and valuation as herein directed. If the quantity to be assessed is a part only of a tract, that part, or the part not liable must be particularly described. (Tax Law, § 29.) No. 41. Commissioners' Assessment of Highway Labor. (§ 33, ante.) The undersigned commissioners of highways of the town of , in the coimty of , 1^. Y., having met for the purpose of ascertaining, assessing and apportioning the high- way labor to be performed in said town the ensuing year, all the commissioners being present and having deliberated thereon, do hereby ascertain, estimate and assess as follows : 1. The whole number of days' work to be assessed for the year is ascertained and determined to be .... days, being at least three times the number of taxable inhabitants in said town. 2. Every male inhabitant above the age of twenty-one years excepting all honorably discharged soldiers and sailors who lost an arm or leg in the military or naval service of the United States, or who are unable to perform manual labor by reason of injuries received or disabilities incurred in such service, members Forms. 23T of any fire company formed or created pursuant to any statute, and situated within such town, persons seventy years of age, clergymen and priests of every denomination, paupers, idiots and lunatics), there being , all hereinafter named, is assessed {at least) one day. 3. The residue of such work being .... days, is assessed and apportioned upon the estate, real and personal, of every inhabitant of the town, including corporations and occupants of non-resident lands taxable therein, as shown in the following schedule, and it appearing from the last annual returns of the overseers of high- ways in highway districts Nos. . . . , ... and ... of said town, that several persons and corporations who were assessed to work on the highways in the said district have neglected to work the whole number of days assessed and have not commuted therefor or otherwise satisfied such deficiency, we, therefore, pursuant to section 40 of the Highway Law, hereby reassess the said deficien- cies of such persons and corporations and have added such deficiencies with the particulars of the reassessment thereof to the assessment of such persons herein: NAMES. Value of property. Number of days. A.B CD $1,200 00 2,000 00 3 5 C. D. (reassessed 1901) 5 E. F 1 All lands in said town owned by non-residents and contained in the list made by the commissioners and not occupied by an inhabitant of the town, are assessed as follows: Descriplion of Land (as in list of non-residents). . Quantity. Valuation. Number of days. Witness our hands this day of , l9 . Commissioners of Highways. 238 The Highway Law. No. 42. ITotice of Desire to Work Unopened Highway. (§ 33, subd. 5, ante.) To , and , Commissioners of Highways of the Town of , County, N. Y.: You WILL PLEASE TAKE NOTICE, That the tindersigned, who is an inhabitant of said town, desires to apply the whole (or any part) of his highway labor, pursuant to section 33 of the High- way Law upon (describe the highway or part thereof) which is a (part of a) highway in said town that the commissioners of highways of said town have neglected to open and work for one year after it was laid out and title thereto acquired. Dated this day of , 190. . Applicant. No. 43. Overseer's Boad Warrant. To , Overseer of Highways in District No J of the Town of , County, N. Y.: I. You will give at least twenty-four hours' notice to all resi- dents of your district, and corporations herein assessed to work upon the highways therein, of the time and place at which they are to appear for that purpose, and with what teams and imple- ments, and that they will be allowed at the rate of one day for every eight hours of work on the highways, between seven o'clock in the forenoon and six o'clock in the afternoon. The notice to corporations shall be served personally on an agent thereof resid- ing in the town, if any, or if none, by filing the notice in the office of the town clerk at least five days before the labor shall be required; and any number of days, not exceeding fifty, may be required to be performed by any such corporation in any one day. ToEMs. 239 II. You will give at least five days' notice to every resident agent of every non-resident landholder, whose lands are assessed, of the number of days such non-resident is assessed, and the time and place at which the labor is to be performed. If you cannot ascertain that such non-resident has an agent within the town, you will file a written notice in the office of the town clerk, at least twenty days before the time appointed for performing such labor, containing the names of such non-residents, when known, and a description of the lands, with the number of days' labor assessed on each tract, and the time and place at which the labor is to be performed. III. Every person and corporation shall work the whole num- ber of days for which he or it shall have been assessed except such days as shall be commuted for at the rate of one dollar per day, and such commutation money shall be paid to you within at least twenty-four hours before the time when the person or corporation is required to appear and work on the highways ; but any corporation may pay its commutation money to the commis- sioners of highways of the town, who will pay the same to you as such overseer. IV. You may require a team, or a cart, wagon or plow, with a pair of horses, or oxen, and a man to mange them, from any person having the same within your district, who shall have been assessed three days or more, and each person furnishing the same upon such requisition shall be entitled to a credit of three days for each day's service therewith. V. The names of persons or corporations omitted from this list, and of new inhabitants, shall from time to time be added thereto, and they shall be assessed by you as such overseer in proportion to their real and personal estate, to work on the highways as others assessed by the commissioners on this list, subject to an appeal to the commissioners of highways. VI. Every person or corporation assessed to work on the high- ways, and warned, who does not commute therefor, may appear in person or by an able-bodied man as a substitute. A day's labor shall be eight hours of work, and every person or corporation 240 The Highway Law. assessed more than one day shall be allowed to work ten houTB in each day. VII. You shall, as such overseer of highways, on or before the first day of September, of each year (or as may be), make out and deliver to the commissioner of highways of your town, a list of all persons and corporations who have not worked out or com- muted for their highway assessment, with the number of days not worked or commuted for by each, charging for each day in such list at the rate of one dollar and fifty cents per day ; and also a list of all the lands of non-residents and persons unknown, which were assessed on your warrant by the commissioners of highways or added by you on which the labor assessed has not been performed or com- muted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day, which list shall be accompanied by your afiidavit that you have given the notice required to appear and work, and that the labor specified in the list returned has not been performed or commuted. VIII. You shall on the second Tuesday next preceding the time for holding the annual town meeting in your town, within the year for which you are elected or appointed, render to one of the commissioners of highways of the town, an account in writing, verified by your oath and containing: 1. The names of all persons assessed to work on the highways in the district of which you are overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those from whom penalties have been collected and the amounts thereof. 4. The names of all those who have commuted, and the man- ner in which the moneys arising from penalties and commutations have been expended bj- you. 5. A list of all persons whose naraes }'ou have returned to the commissioners of highways as having neglected or refused to work out their highway assessments, with the niunber of days and the amount of tax so returned for each person, and a list of all the lands wliich you have returned to the commissioners of highways FoKMS. 241 for non-payment of taxes and the amount of tax on each tract of land so returned ; and you shall then and there pay to the com- missioners of highways all money remaining in your hands unexpended. If any owner or occupant (for a term of one or more years) shall fail to cut all noxious weeds, briers and brush growing upon his lands within the bounds of the highway between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of September, you shall give written notice to any occupant of the premises to cut all such noxious weeds, briers and brush ; if such owner or occupant shall not cut such weeds, briers and brush as so required within ten days after receiving such notice you shall do such work and make a report under oath to the supervisor of the amount expended by you thereon, and the ownership and occupancy of the several parcels of land against which the labor was performed on or before the first day of November in each year. X. Below herein is given the names of all residents of your district and corporations assessable to work upon the highways therein and the number of days of highway labor assessed to and to be performed by each the ensuing year; also a list and state- ment of all unoccupied lots, pieces or parcels of land within the town, owned by non-residents; with a description of every such lot described in the same manner as is required from assessors, and its value and the number of days assessed set down opposite the description. Witness our hands this .... day of , 190. . Cow.missioners of Highways. (Attach lists of inhabitants as furnished by overseer and descriptions of non-resident lands as made out by commissioners, adding number of days assessed and signatures of commissioners.) W 242 The Highway Law. No. 44. Notice of Appeal by Non-Besident. (§ 36, ante.) In the Matter of the Appeal of a Non-resident Owner of Unoccupied Lands from an Assessment of Highway Labor. , respectfully shows that he is a non- resident owner of unoccupied land situated in the town of , county, N. Y., and that he considers himself aggrieved by an assessment of highway labor upon such lands made by , and , com- missioners of highways of said town, on the day of , 190 . . . , and hereby appeals to the county judge of the said county of in which such land is situated to have such assessment corrected. Dated at said town this day of , 190. . . No. 45. Notice of Hearing of Appeal. (§ 36, ante.) You will please take notice that the appeal of the undersigned non-resident from your assessment of highway labor upon unoccu- pied lands in your town will be heard by the county judge at his chambers in the city of , IST. Y., on the .... day of , at ... o'clock in the noon. Dated this day of , 190 . . . To , and Commissioners of Highways of the Town of . County, 1!^. Y. FOKMS. 243 No. 46. Assessment by Overseer. ' (§ 42, ante.) Wheeeas, I, , overseer of Koad District No , in the town of , cotmty, IST. Y., do not deem the labor assessed on the inhabitants of said town of , for the year 190. . . sufficient to keep the high- ways in said district in repair; Theeefoee, I do hereby further assess the following named persons (actual residents in said district only) the amount of labor set opposite their respective names, being in the same proportion, as near as may be, and not to exceed one-third of the number of days assessed in the same year by the said commissioners on the inhabitants of said district. NAMES. Days. NAMES. Days. Witness my hand this day of 190. Overseer. No. 47. Order Authorizing Shade Trees and Sidewalks. {§ 43, ante.) We, the undersigned {majority of the) commissioners of high- ways of the town of , county, N. Y., do hereby authorize , and , the owners of property adjoining the Tranklin road in said town, at their own expense, to locate and plant trees and locate a side- walk along said highway in conformity with the topography thereof and in accordance with the map {or diagram) showing 244 The Highway Law. location of the sidewalks and tree planting attached hereto and made a part hereof. Dated this day of , 190. . . Commissioners of Highways. (^Attach a map or diagram showing the location of the sidewalks and trees and file the same and order in the town clerk's office within ten days, § 43, ante.) No. 48. Application to Anticipate Sidewalk Tax. (§ 45, ante.) We, the undersigned, who are a majority of the inhabitants of Highway District l^o of the town of , county, 'N. Y., subject to assessment for highway labor therein, respectfully request you to authorize (one-fourth) of the highway labor of this district or of the commutation money received there- for to be expended under the direction of the overseer of highways of this district in the construction, repairs and improvement of the following sidewalks within the limits of the district (here describe the sidewalks), , and likewise ask your authority that (one-fourth) of the highway labor of the district be antici- pated for (not more than) three years for constructing, improving and repairing said sidewalks. Dated this day of , 190 . . . (Signatures of all Applicants.) No. 49. Order Allowing Anticipation of Sidewalk Tax. (§ 45, ante.) Written application in due form having been made to us by the majority of the assessable inhabitants of Highway District No. . . . , in the town of , county, 'N. Y., to authorize FoEMs. 245 an allowance and an anticipation of highway labor in said district for the construction, repair and improvement of certain sidewalks, and it appearing to us, at a meeting duly called and held to con- sider the same, that the same is desirable, it is hereby Oedebed, That one-fourth of the highway labor of the said district or of the commutation money received therefor be expended under the direction of the overseer of the highways of the district in the construction, repairs and improvement of the following sidewalks within the limits of the district (here describe the sidewalks) ; and, it is further Oedeeed, That one-fourth of the highway labor of the district may be anticipated for (not more than) three years for construct- ing, improving and repairing such sidewalks, pursuant to section 45 of the Highway Law. Witness our hands at said town this day of , 190... Commissioners of Highways. (Application for sidewalks^ Form No. 120, post.) No. 50. Certificate of Anticipation. (§ 46, ante.) I^ , overseer of highways for Highway District No , in the tovm of , county, IST. T., do hereby certify, pursuant to section 46 of the Highway Law, that has anticipated and worked (or, commuted for) days' highway labor, and, pursuant to said sec- tion 46 of the Highway Law, is entitled, upon presentation of this certificate, to be credited by the overseer of highways for this district with the performance of the number of days' labor assessed for each successive year until the credit shall equal the number of days stated in this certificate to have been anticipated. Dated at said town this day of , 190 . . . Overseer of Highways. 246 The Highway Law. No. 51. Transfer of Certificate of Anticipation. (§. 47, ante.) I, , the owner of the real estate upon which the highway labor covered by the foregoing certificate of antici- pation was assessed, do now, upon the voluntary grant of the said real estate, transfer and set over unto , the grantee of said real estate, this certificate of anticipation, together with all my right thereunder. Dated this day of , 190. . . In the presence of No. 52. Bequest to Vote on Change of System of Taxation. (§ 51, ante.) We, the undersigned, who are twenty-five taxpayers of the town of , county, N. Y., hereby request that the electors of the said town may, at the next biennial (or, special) town meeting, vote by ballot upon the question of changing the system of taxation for working the highway. Dated this day of , 190. . . (Signatures of all Petitioners.) No. 53. Notice of Assessment of Costs of Cutting Weeds. (§ 53a, ante.) To (owner of lands) : Yotr WILL PLEASE TAKE NOTICE, That on the day of '. . ., 190. . (at least eight days' notice), at . . . o'clock in the noon, at , in town of , county, N. Y., i. ., Esq., supervisor of this town will, pursuant to section o3a of the Highway Law, assess the costs of cutting the noxious weeds, briers and brush growing along the sides of the highway upon which your lands in said town front, (or, of removing the fences, brush, shrubbery and other obstruc- FoHMs. 247 tions \_or^ as may 6e] causing the drifting of snow upon said high- "^'^y) you and the occupant thereof having failed to cut (or, remove) them as required by said section, and they having been cut (or, removed) by us pursuant thereto. Dated this . . day of , 190. . Commissioners of Highways. No. 54. Notice to Corporation to be Served on Agent or Filed in Office of Town Clerk. (§ 60, ante.) To , a Corporation (and to , Agent of Said Corporation) : Take notice that you are assessed days' labor in Highway District ^o , in the town of , county, N. Y., and that said labor is required to be performed on the highway (state where) in said district, on the day of next, and the days following, and you are required to furnish (teams and implements, etc., if any) and to perform (not exceeding fifty) days' labor in a day, and you will be allowed one day for every eight hours of work on said highway between seven o'clock in the fore- noon and six o'clock in the afternoon. Dated this day of , 190. . . Overseer of Said Highway District. (Adapt notice to persons from above.) No. 55. Notice to Agent of Non-Resident. (§ 61, ante.) To , a Nonresident Owner of Lands in Town of , county, N. Y., and to , His Agent: Take notice that , a non-resident of the ffaid town, is assessed days' labor in Highway District 248 The Highway Law. !N"o , in said town, and that said labor is required to be per- formed on the highway (state where) in said district on the day of next, and the days following. Dated this day of 190. Overseer of Said Highway District. No. 56. Notice to Nou-Besidents to be Filed. (§ 61, ante.) ITotice is hereby given that the highway labor assessed on the following-described parcels of lands in the to\vii of , county, N. Y., owned by non-residents, is required to be performed on the .... day of next, in Highway District No , in said town, on the highway (state where). NAMES. DeBcription of Jands. Number of days aeeeeBed. Dated , 190. Overseer of Said Highway District. No. 57. Application for a County Highway or Bridge, Etc. (County Law, § 61, ante.) To the Board of Supervisors of the C'ouvty of , N. Y.: We, the undersigned, being twenty-five resident taxpayers of the county of , hereby make application, in pur- suance of section 61 of tho County Law, for the laying out (open- ing, altering, etc.) of a county highway (or, the construction, etc. Forms. 249 of a county bridge) described as follows (insert ^n accurate description of the highway or bridge). Dated this day of , 190 . . . {8ignature&.) No. 58. Besolution of Board of Supervisors Granting Application. (County Law, § 61, ante.) At a meeting of the board of supervisors of the county of N. Y., held at , on the day of , 190. .. Wheeeas, Application has been made for the laying out {^or altering or discontinuing) of a highway in said county; and, Wheeeas, Satisfactory proof has been made to us of the due ser- vice of a copy of such application, together with a notice of inten- tion to make the same, upon a commissioner of highways of each town in said county, Resolved, That a high^vay be laid out in accordance with such application, as follows: (insert survey). Chairman. J Clerh. No. 59. Overseer's Beturn to Commissioner of Highways. (§ 66, ante.) To the Commissioners of Highways of the Town of , County, N. Y. : The following is a list of all persons and corporations in high- way district No. . . . , in the town of , county, I^. Y., who have not worked out or commuted for their highway assessment, with the number of days not worked or com- muted for by each, charging for each day in such list at the rate of one dollar and fifty cents per day; and also a list of all the lands of non-residents and persons imknown, which were assessed on your warrant, for the year 190. ., by the commissioners of 250 The Highway Law. highways, or added by me, on which the labor assessed has not been performed or commuted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day : OWNER'S NAME. DeBCriptlon of lands. AsBeesed valne. No. of dOTB aBseBBed. Days not worised or commuted for. Amount. t List of lands of non-residents, etc. ; NAME OF OWNER. Description of lands (as in commissioner's list). AsseSBed valae. No. of days asBessed. No. of days unpaid. Amount. i Overseer of Highways. STATE or NEW YOKK, | County of )■ ss.: Town of ) , being duly sworn, says that he is overseer of the highways of highway district No , in the Town of , county, N. Y. Deponent further says he has given the notice required, to appear and work, to wit, all notices provided in the Highway Law, and that the labor specified in the foregoing list returned has not been performed or commuted. Subscribed and sworn to before me, this day of , 190... Notary Public. FOBMS. 251 No. 60. Overseer's Annual Account. {§ 69, ante.) ^0 , Commissioner of Highways of the Town of , County, N. Y.: 1, the undersigned overseer of Mghway, of Higliway District No. , in said town, pursuant to law, renders the following annual account: The following is a list of : 1. The names of all persons assessed to work on the highway in the district of which I am overseer ; 2. The names of all those who have actually worked on the highways, with the number of days they have so worked; 3. The names of all those from whom penalties have been collected, and the amounts thereof; 4. The names of all those who have commuted, and the man- ner in Avhich the moneys arising from such penalties and commu- tations have been expended by me ; 5. Of all persons whose names I have returned to the com- missioners of highways as having neglected or refused to work out their highway assessments, with the number of days and the amount of tax so returned for each person and a list of all the lands which I have returned to the commissioners of highways for non- payment of taxes, and the amount of tax on each tract of land so returned, to wit: NAMES. UayB aesesaed to each. Days worked by each. Days commuted by each. — Penalties col- lected from each. $ ,. Total $ 252 The Highway Law. A list of all persons returned to commissioners of highways as liaving neglected or refused to work out their highway assessment: NAMES. Days assessed. Amount returned. « Total 8 A list of all lands returned to the commissioners of highways for non-payment of taxes and the amount of tax on each tract of land so returned : NAMES. Description (as in commissioners^ ]ist). Amount returned.. $ Total. $ Statement of manner in which moneys arising from penalties and commutations have been expended : Receipts. Penalties Commutations Total. EXPENDITUEES. Cash paid for . Cash paid for . (^ash paid for . Total Leaving a balance in my hands of . Overseer of Highways. Forms. 253 STATE OF NEW YOEK, )TrNTY O Town of . County of > gs. , being duly sworn, says that he is the overseer of highways for highway district No , of the town ^^_ J county, N. Y., and that the fore- going account subscribed by him is in all respects true and correct. Subscribed and sworn to before me this day of , 190 .. . Notary Public (or as may be). No. 61. Application to Lay Out Highway Upon Dedication. (§ 80, ante.) Adapt from form No. 68 to the*, thence as follows: who have dedicated the land therefor. Dated , 190.. Applicant. No. 62. Dedication of Land for Highway. (§ 80, ante.) I hereby dedicate for highway purposes all that tract or parcel of land situated in the town of , county of ; *, and State of New York, and bounded and described as follows: (insert description) hereby releasing said town and all persons whomsoever from all damages by reason of the laying out and opening of a highway across the same. Witness my hand and seal this .... day of , 190. . [L. s.] (Add achnowledgment as in form No. 3.) 254 The Highway Law. No. 63. Order Laying Out a Highway TJpon. Dedication. (§§ 80, 81, ante.) At a meeting of the commissioners of highways of the town of , county, N. Y., duly called and held for the purpose of determining upon laying out the highway here- inafter described, and it appearing that such highway should be laid out, it is OedeeeDj That a highway be laid out in said town as follows : (insert survey) ; the said highway passing through the lands of , and , all of whom have * dedicated lands therefor as appears by their several deeds of dedication and release filed and recorded in the town clerk's office. Witness our hands at said town this . . . day of , 190. . Commissioners of Highways. No. 64. Application to Xay Out or Alter Highway Upon Release of Damages. (§ 80, ante.) Adapt form from, Form No. 68 to the*, thence as follows: who have released aU damages from the laying out and opening (or, altering) of such highway for the following sirms: The said for $ . . . . (and so on) ; and they being the only owners of lands taken or affected thereby. Dated this day of , 190. . . Applicant, FoEMs. 255 No. 65. Kelease of Damages from Highway. (§ 80, ante.) I hereby consent that a highway he laid out and opened (or, altered) through my lands in the to-wn of , county, N. Y., as follows (insert description) and release said town and all persons whomsoever from all damages caused thereby. Witness my hand and seal this day of , 190... [!-• S.] (Signature.) (Add acknowledgment as in Form No. 3.) No. 66. Consent of Town Board to Laying Out or Altering a Highway. (§ 80, ante.) At a meeting of the town hoard of the town of , county, E". T., duly called and held to consider the matter of consenting to the laying out (or, altering) of the herein- after described highway upon release of damages, it is hereby consented that a highway be laid out (or, altered) in said town as follows (insert description), said highway passing through lands of , and , who have released their damages therefrom. Dated ,190... Supervisor. Town Cleric. Justice of the Peace. Justice of the Peace. Justice of the Peace. Constituting said Town Board. 256 The Highway Law. No. 67. Order La3ring Out or Altering a Highway TJpon Release of Damages. (§§ 80, 81, ante.) As in form No. 63, to the*", thence as follows: released their damages caused thereby for the following sums : , for $ (and so on) ; and the town board of said town con- senting to the laying out (or, altering) of the same ; which releases and consent are filed and recorded in the town clerk's office. Witness our hands this day of , 190. . . Commissioners of Highways. No. 68. Application to Lay Out, Alter or Discontinue a Highway. (§ 82, ante.) To , and , Commissioners of Highways of the Town of , County, N. Y. : The undersigned, who (resides in,) owns property in and is assessable for highway labor in the said town of , hereby applies to you to lay out a new (or, alter ; or, discontinue a) highway in said town as follows: (Here describe the highway pro- posed to he laid out or discontinued or the proposed alteration). That said highway (or, alteration) will pass through (or, passes) through the lands of , and ,* (all of whom consent to the laying out or, altering; or, discon- tinuing of said highway). Dated this day of , 190. . . Applicant. FoKMs. 257 No. 69. Notice of Application for Commissioners on Laying Out, Altering or Discontinuing a Highway.* (§ 83, ante.) COUNTY COUKT — County. In the Matter of the Application of to Lay Out {or, alter, or, discontinue) a High- way in the Town of County, N. Y., and the Assessment of Damages Therefor. You WILL PLEASE TAKE NOTICE, That upon this notice (and such other notice as may have been directed and the order directing the same) and upon the petition herein, with a copy of which you are herewith served and the application to you therein referred to and upon proof of service of all thereof, an application will be made to the Hon , County (or, Special County) Judge of county, N. Y., at his chambers (or^ the County Court House; or, as may he) in the city of , on the .... day of , 190. ., (within thirty days after appli- cation to commissioners of highways) at .... o'clock in the . . . .noon or as soon thereafter as counsel can be heard for the appointment of three commissioners to determine upon the neces- sity of a proposed highway (or, as may he), described in said peti- tion and to assess the damages by reason of the laying out and opening (or, as may he) thereof. Dated this day of , 190. . Yours, etc.. •) Attorneys for Petitioner, etc. (Address to the Commissioners of Highways.) *Give such other notice to interested parties as judge may direct. — § 1 17 258 The Highway Law. No. 70. Application for Commissioners on Laying Out, Altering or Discontinu- ing a Highway. (§ 83, ante.) COUNTY COUKT — Coimty. In the Matter of the Application of , to Lay Out (or, alter, or discontinue) a High- way In the Town of , County, N. Y., and the Assessment of Damages Therefor. To the County {or, Special County) Judge of County, N. Y.: The petition of , respectfully shows: 1. That he (resides in,) owns property in the town of , county, N. Y., viz , and is assessable for highway labor in said town. That at all times hereinafter mentioned he so (reeided in) owned property in and was assessable for highway labor in said town. 2. That on the .... day of , 190. ., he made and presented an application in writing to the commissioners- of high- ways of said to'wn of which the following is a copy : {Insert a copy of the application to the commissioners with proof of service.) 3. That said application was made and presented in good faith ; that the commissioners of highways have not laid out {or, altered or, discontinued) said highway but that they neglect and refuse so to do, nor has the land required for such highway {or, as the case may he) been dedicated to the town for highway purf)oses, or been released as by the highway law provided. That your peti- tioner presents herewith the undertaking required by section 83 of the Highway Law. Wheeefoee, your petitioner prays that three commissioners be appointed pursuant to the provisions of the Highway Law, to deter- mine upon the necessity of such highway proposed to be laid out {or, altered — or, the uselessness of the highway proposed to be dis- FoEMs. 259 continued), and to assess the damages by reason of the laying out and opening {or, as may he) of such highway. Dated , 190. . l_8ignature of Applicant.'] Attorney for Applicant, ,N.Y. No. 71. Verification of Same. STATE OF NEW YOEK, \ CoxniTTY OF I ss.: Towir OF ) , being duly sworn, says that he is the applicant named in the foregoing petition, that he has read the same and knows the contents thereof, that the same is true of hia own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. Subscribed and sworn to before me this day of , 190.. Notary Public. No. 72. Undertaking for Costs, Etc. (§ 83, ante.) \_Entitle as in preceding form.} "Wheebas, the undersigned is about to make application to the Hon. , County {or, Special County) Judge of county, N. Y., for the appoint- ment of commissioners to determine upon the necessity of a cer- tain proposed highway {or as may he) in said town and to assess tiie damages therefor. 260 The Highway Law. Now, Theeefoee, the said , as principal, and (and ), as surety (or sureties) do hereby jointly and severally undertake that if the commissioners appointed determine that the proposed highway (or alteration) is not necessary (or, that the highway proposed to be discontinued is not useless) we will pay to the commissioners their compensation at the rate of four dollars for each day necessarily spent, and all costs and expenses necessarily incurred in the per- formance of their duties, which amount shall not exceed the sum of fifty dollars. Witness our hands and seals this . . . day of , 190 . . [L.S.] [I"S.] (Signatures and seals.) (For forms of achnoidedgment , justification and approval, kee Forms Nos. 3, 4 and 5, ante.) No. 73. Order Appointing Commissioners. (§ 84, ante.) COUNTY COURT — County. In the Matter of the Application of , to Lay Out (or, alter or, discontinue) a High- way in the Town of , County, N. Y., and the Assessment of Damages Therefor. On reading and filing the petition of , of the town of , in said county, verified the .... day of , 190. ., praying for the appointment of three com- missioners, pursuant to the provisions of the Highway Law, to determine upon the necessity of a highway proposed to be laid out (or as may be), beginning (injiert the description as in the application), and to assess the damages by reason of laying out and opening (or altering, or discontinuing) such highway. And upon FoEMs. 261 reading and filing proof of due service of notice of this application upon the (several) commissioner(s) of highways of said town ^^ (awcZ upon all other persons required to he seribd), together with copies of said petition, and upon veadiiig and filing (enumerate all other motion papers, including original application to commissioners) and upon reading, approving and filing the undertaking required by section 83 of the Highway Law, and after hearing , of counsel for said peti- tioner and , of counsel for , in opposition, and due deliberation having been had, Now on motion of said , attorney for said petitioner, it is Ordekki), That and , three disinterested freeholders* of the town of , in said county, be and tliey hereby are appointed such commissioners to determine the questions mentioned in sec- tion S3 of the Highway Law and to take such steps and proceed- ings as are required or authorized by law. County (or, Special County) Judge. No. 74. ITotice of Appointment. ^ I Entitle as in preceding form.] Take notice that you, and each of you, were, by an order of the Hon , County (or, Special County) Judge of county, ]!f . Y., a copy of which is hereto annexed, on the .... day of , 190. ., appointed commissioners as therein set forth, and you are hereby required, to take the con- stitutional oath of office and fix a time and place at which you will all meet to hear the commissioners of the highways of the town of , county, ]^. Y., and all other persons interested in the highway mentioned in said order. Dated this day of , 190. .. (Signature.) (Adapt constitutional oath of office from Form No. 8, ante, omitting portion between **.) *Ae to reciting quilifioations of appointees sec Matter nf Baker, 173 N. Y. 249; p. 84, ante. 262 The Highw4Y Law. No. 75. Appointment of Meeting of Commissioners. (§ 84, ante.) \_Entitle as in preceding form.] An order having been duly made herein on the day of , 190.., appointing the undersigned commissioners to determine upon the necessity of laying out (oTj as may be) a certain highway in the said town of , described in the petition herein and assess the damages by reason of the laying out and opening {or, as may he) thereof and the undersigned having duly taken the constitutional oath of office, do hereby appoint the .... day of , 190. ., at .... o'clock in the noon at the of i^- 9-) ^^ hotel of one ) in said town as the time and place at which they will meet and hear the commissioners of highways of the town where such (proposed) highway is situated and others interested therein and take such other action as is authorized by law. Dated this day of , 190. .. Commissioners. No. 76. Notice of Meeting of Commissioners. (§ 85, ante.) COUNTY COURT — County. In the Matter of the Application of to Lay Out {or, alter; or, discontinue) a High- way In the Town of County, N. Y., and the Assessment of Damages Therefor. Notice is hereby given that the undersigned has made applica- tion to the commissioners of highways of the town of , FoEMs. 2 03 • • ■ county, ]Sr. Y., for the laying out and opening (or, the altering; or, the discontinuing) of a highway in said town, as follows: (here insert description as in the application) which (proposed) highway (or, alteration) will pass (or, passes) through the lands of (name as in petition), and that by an order of the Hon , County (or. Special County) Judge of county. Is". Y., dated the ... . day of , 190.., , and were appointed commissioners to determine upon the necessity of said proposed highway (or as the case may he), and to assess the damages by reason of the laying out and opening (or, the alteration; or, the discontinuance) of such highway; and that said commissioners have taken the constitutional oath of office and will meet on the .... day of , 190 . . , at . . . . o'clock in the .... noon, at , in said town, the same being the time and place duly appointed by them therefor, to examine the proposed highway (or as may he) and hear the commissioners of highways of said town of , and all others interested therein, and to assess the damages if such highway (or, alteration) be determined to be necessary (or, useless) ; (if petition is for laying out a road, add: and will also, if they determine that the proposed highway is necessary, estimate the probable cost of laying out and complet- ing the same as required by section 86 of the Highway Law) ; and to take such other and further proceedings as may be authorized by law. (Signature.) To: (Address to commissioners of highways and all owners and occupants. ) No. 77. Proof of Posting and Service of Foregoing Hotice. (§ 85, ante.) STATE OF NEW YOKK, | CouBTTY OF y ss.: Town of ) , being duly sworn, says that he is over twenty-one years of age, and that he posted up notices in writing 264 The Highway Law. of which the within is a copy, at , , and , three public places in the town of , in said county, on the .... day of , 190. ., and that he served a like notice upon each of the following named persons at the time and place set opposite their respective names, as follows: on , 190. ., at , K Y. on , 190. ., at , N. T. {name all the owners and occupants of the lands through which the highway is proposed to be laid out, altered, or discontinued) by delivering to and leaving with each of them a true copy thereof (or, by leaving the same at his residence with a person of mature age, to wit, his wife ; and if any Avere served by mail, add : and upon the following persons by depositing the same in the post office at , W. Y., properly enclosed in a securely closed postpaid wrapper, addressed to them respectively, as follows: To , at , K Y. ; to , at , N. Y. (etc.) ; those being their respective post office addresses, and they not residing in said town of ) . And deponent personally laiew said persons to be the same persons to whom said notice was addressed and to be respectively all the owners and occupants of the lands through which such highway is to be laid out (or as may he). Subscribed and sworn to before me this day of , 190. .. I Notary Public (or as may be). No. 78. Subpoena to Attend Before Commissioners. (§ 84, ante.) ]_Entitle as in Form No. 76. J The People of the State of New York, to and You and each of you are hereby commanded to be and appear before us, commissioners appointed by the County (or, Special County) Judge of county, at the , FoBMs. 265 in the town of , on the day of , 190 . ., at .... o'clock in the noon, to testify and give evi- dence in the matter of laying out (altering or discontinuing) a highway, and assessing the damages therefor, in the town of , then and there to be heard and determined. Dated this .... day of 190. .. Commissioners. No. 79. Oath of Witness. (§ 84, ante.) You do solemnly swear that the evidence you shall give touch- ing the necessity of laying out (altering or discontinuing) the highway in question, and assessing the damages therefor, shall be the truth, the whole truth, and nothing but the truth, so help you God. No. 80. Certificate of Commissioners in Favor of Application. (§§ 86, 87, ante.) COUNTY COURT — County. In the Matter of the Application of , to Lay Out {or, alter; or, discontinue) a High- way in the Town of County, N. Y., and the Assessment of Damages Therefor. The undersigned having been by an order of the County (or, Special County) Judge of . . county, K Y., dated the day of , 190. ., made on the application of , appointed commissioners (if only a majority 266 The Highway Law. of the commissioners join in the decision, add: together with ) to determine upon the necessity of the laying out and opening (or, the altering) of a highway (or, the useless- ness of a highway proposed to be discontinued) in the town of , in said county, as follows (describe highway as in application) : which proposed highway (or, alteration) will cross (or, which highway crosses) the lands of (name the persons as in application), and to assess the damages to be caused thereby; having taken the constitutional oath of office, and having deter- mined upon and given due notice of the time and place at which we Mould meet, and all haA'ing met at , in said town on the .... day of , 190. ., pursuant to such notice; and proof of the due service and posting of the notices by the applicant, pursuant to section 85 of the Highway Law having been made; and having examined the highway proposed (to be discontinued, or, the alterations proposed), and the lands through Avhich it is proposed to be laid out and opened (or, altered; or, discontinued), and the following persons appearing by their at- torneys, to wit, by , his attorney (note all appearances), and having heard all the evidence and allegations of the commissioners of highways of said town and the parties interested therein, and the evidence of all the witnesses produced and all reasons offered for or against the proposed laying out (or, altering ; or, discontinuing) of said highway and after hearing the arguments of counsel ; Now, Theeefoee, We, the said commissioners (or, a majority of said commissioners, due notice of the time and place of this meet- ing having been given to all ; or, all having met and deliberated ; or as may be), do hereby certify, decide, detenuine and order that * it is necessary that the highway be laid out and opened (or, altered; or, that said highway is useless and should be discon- tinued), pursuant to the said application of , dated the .... day of , 190. . (except that a slight varia- tion therefrom should be made as follows: describe variation briefly and give reasons therefor) ; and the following is a survey of said road (or, alteration) as we determine and certify it is necessary that it be laid out and opened (here insert a survey so accurate that from it alone the road can be laid out). Said road (or, alteration) will pass (or, passes) through the lands of (name persons). And we have assessed the damages required to be assessed by reason of laying out and opening (or altering; or, discontinuing) such highway as follows: Forms. 26? The damages of , at $ ; the damages of , at $ ; and the net damages of , after deducting the benefits resulting under the provisions of sec- tion 87 of the Highway Law to the amount of $ are assessed at $ (// petition is for laying out a highway, add: The probable cost of laying out and completing said highway would be, in our opinion, based upon the evidence given before us upon the hear- ings $ ) Done in duplicate this day of , 190 . . . Commissioners (or, A Majority of Said Commissioners). {Indorse with memorandum of costs and expenses of commis- sioners. ) No. 81. Same Denying Application. (§ 88, ante.) \_Entitle as in Form No. 80.J {As in No. 80, to the * and continue) the proposed highway {or, alteration) is not necessary {or, that the highway proposed to be discontinued is not useless). Done in duplicate and dated this .... day of , 19t) . . . Commissioners (or, A Majority of Said Commissioners) . {Indorse with memorandum of costs (ind expenses of com- missioners.) No. 82. Notice of Motion to Confirm, Vacate or Modify Decision. (§ 89, ante.) [Untitle as in Form No. 80.J Please take notice that upon the decision of the commissioners herein dated , 190. ., a copy of which is herewith 268 The Highway Law. {or, on , 190. ., was by me) served upon you, and upon the minutes and evidence of said commissioners filed in county clerk's office, , 190. ., and upon the order of this court dated , 190. ., appointing said commissioners and upon (here state alt other moving papers) and upon this notice of motion and proof of service hereof, an appli- cation will be made to this court (or a judge thereof) at a term thereof, to be held at the court house in the of ,011 the .... day of , 190 . . , for an order confirming (or, vacating; or, modifying in the following particu- lars, stating them) the said decision of the commissioners in the above entitled matter, with costs (and for — state other relief desired), and for such other and further relief as may seem proper. Dated this day of , 190 .. . Yours, etc.. Attorney for , (Address, etc.) To (Adverse parties.) No. 83. Order Confirming, Vacating or Modifying Decision. (§ 89, ante.) At a term of the County Court, held in and for said county, at the county court house, in the of , on the .... day of , 190... Present, Hon , County Judge. (// not a court order omit the foregoing caption.) [Entitle as in Form No. 80.J On reading and filing the decision of , and , the commissioners in the above-entitled matter, dated the day of , 190 . ., by which it appears (state substance of decision), and upon reading and filing FouMs. 269 [enumerate all other papers used upon the motion), together with proof of due service of notice of this motion and (enumerate other papers) upon and and after hearing , of counsel for , and , of counsel for , opposed, and, after due deliberation, it is, on motion of said , Ordered, That the said decision be, and the same is hereby con- firmed — or, vacated and another hearing be had before the same (or, other) commissioners, to wit: name them; — or, modified as follows (state particulars of modification) ; with $ costs to to be paid by County Judge. No. 84. Certificate of Commissioners of Highways on Decision. (§§ 81, 98, ante.) \_Entitle as in Form No. 80. J Whereas, , did present to us, as commissioners of highways of the town of , county, N. Y., a written application dated the day of , 190 . . , to lay out a highway in said town (or, as may he), and which we refiised (or, failed) to grant; and, Whereas, Commissioners were thereafter duly appointed pur- suant to section 84 of the Highway Law; and, after having duly met and performed the several duties imposed by law upon them, certified ihat such proposed highway was necessary and should be laid out and opened, and assessed the dam- ages therefor and duly made their certificates to that effect, and the said court having confirmed the decision of said com- missioners (or, no motion having been made to confirm, vacate or modify such decision within thirty days after it was filed in the town clerk's office), which said applications and all other papers, orders and certificates were duly filed in the offices of the town clerk of said town and the county clerk of said county, respectively, as required by law, to which papers reference is here made; 270 The Highway Law. Now, Thebefoee, We, the undersigned commissioners of high- ways of said town, at a meeting duly called and held for such purpose and pursuant to the statute, do hereby lay out such high- way so applied for and as ordered, whereof a survey has been made, as follows: Beginning (here insert survey so definite that from it alone the highway may ie located), and the line of such survey shall be the center of the highway, which is to be rods in width, and passes through lands of , and Witness our hands this day of , 190. . . Commissioners of Highways. No. 85. Consent to Laying Out Highway through Orchard, Etc. (§ 90, ante.) Wheeeas, has made application in writing to the commissioners of highways of the town of , county, N. Y., dated the day of , 190. ., to lay out a highway in said town, beginning at (insert description), and which said highway will pass through my orchard of the growth of four years (or^ garden; or, barn; or, dooryard ; or as the case may ie) ; INow, Therefoee, I do hereby consent that such highway be so laid out, opened, worked, and used through my said orchard (or as the case may ie), but this consent shall not be construed as a waiver or release of my claim for damages by reason thereof (or, damages may ie agreed upon). Dated this day of , 190. . . (Signature of Owner.) (Add acknowledgment as in Form No. 3, ante.) (For forms of order, etc., laying out a highway on consent, see Nos. 64-67, and for forms upon contest, see Nos. 68-84.) FOEMS. 211 No. 86. Certiflcate as to Highway To Be Laid Out through Orchard, Etc. (§ 90, ante.) C!OUNTY COURT — County. In the Matter of the Application of , to Lay Out a Highway In the Town of , County, N. Y., and the Assessment of Damages Therefor. 2'o the County Court of County, N. Y. : We, the undersigned eomiaissioners of highways of the town of , in said county, hereby certify that on the day of , 190. . ., , who is assessable for highway labor in said town, made a written application to us, as such commissioners, to lay out a highway in said town, passing through an orchard of , of the growth of four years or more (o?- as the case may he), pursuant to the HighWdj^ Law, as follows (insert a copy of the application). ., ^i. "^o That the said (owner) does not consent th^rbto. That the following proceedings were had upon such application (insert a history of the proceedings up to and including the filing of decision of the commissioners appointed hy the court). We further certify that the public interest will be greatly promoted by the laying out and opening of such highway through said orchard (or as may he) ; and that the commissioners appointed by this court have certified that such highway is necessary and have assessed the damages of all parties by reason thereof as follows: , at $ , etc. Dated the day of , 190. . . Commissioners of Highways. (Serve copy of this certificate, with notice of motion, eight days before hearing, § 90, ante; adapt notice of motion from Form No. 82, ante.) 272 The Highway Law. No. 87. Order to Lay Out a Higliway through Orchard, Etc. (§ 90, ante.) At a Term of the County Court, held in and for said County at the County Court House, in the City of , on the day of , 190... Present — Hon , County Judge. [Untitle as in Form No. 86. J Upon reading and filing the certificate of , and , commissioners of highways of the town of , county, N. Y., stating (give substance of certificate), and upon reading the following papers (name all motion papers), together with proof of due service of notice of this motion and (copies of all papers served), and after hear- ing , of counsel for the applicant, and , of counsel for , opposed, and due deliberation hav- ing been had, it is, upon motion of said Okdeeed, That the said highway described in the application herein be laid out pursuant to said application as follows (insert description of highway). Further Ordered, That $ costs be paid to by County Judge. No. 88. Order of Appellate Division to Lay Out Highway through Orchard, Etc. (§ 90, ante.) At a Term of the Appellate Division of the Supreme Court in the Judicial Department, held at the in the City of , on the. day of ,190... Present — Hon , Presiding Justice. Hon , Justice. Hon , Justice (etc.). lEniitle as in Form No. 86.] , and , as commissioners of highways of the town of , county N. Y., FoEMs. 273 having presented to us an order of the County Court bearing date the day of , 190. ., adjudging and determining that a highway he laid out in said town through the orchard of , of the growth of four years or more {or, as the case may he), pursuant to the Highway Law, with the certificate and proofs upon which said order was granted, duly certified hy such court, with proof of due service of notice of this motion on the said , and , and after hear- ing , of counsel of the applicant, and , of counsel for , opposed, it is hereby Okdeeed, Adjudged and Decreed, That the said order of said C^ounty Coiirt be, and the same hereby is, in all things unanimously confirmed, with $ costs of this motion to , to be paid by Dated this day of , 190 . . . Clerk. No. 89. Certificate of Connnissioners of Highways on Foregoing Orders. (§§ 81, 90, 98, ante.) [Entitle as in Form No. 86.] Wheeeas, , did, on the day of , 190. ., present to us, as commissioners of highways of the town of county, N. Y., a written application to lay out a highway in said to^vn, passing through an orchard of i . , of the growth of four years or more (or, as may he), and such proceedings having been had thereon, pursuant to the High- way Law, that the County Court of said county has ordered said highway to be laid out and opened, which said order has been duly confirmed by the Appellate Division of the Supreme Court, in the Judicial Department, which said application, certificates and all other papers in said proceedings are duly filed in the offices of the town clerk of said town and the county clerk of said county, respectively, as required by law, to which refer- ence is here made. 18 274 The Highway Law. Now, Theeefoee, We, the imdersigned commissioners of high- ways, pursuant to the Highway Law, do hereby lay out said high- way so applied for and as ordered, whereof a survey has been made, as follows : Beginning (insert survey so definite that from it alone the highway may be located), and the line of survey is to be the center of the highway, which is to be rods in width. Witness our hands this day of , 190. . . Commissioners of Highways. No. 90. Notice of Meeting', When OUicers of BiSerent Towns Disagree About a Highway. (§ 94, ante.) You will please take notice that the undersigned, who are com- missioners of highways for the town of , county, ]Sr. Y., will meet at , in said town, on the day of , 190 . . , at .... o'clock in the .... noon, for the purpose of determining upon our differences, viz. {stating them), in relation to the laying out of a new highway (or, the alter- ing of a highway), extending into (or, upon the boundary line between) the town (or, city ; or, village) of , coimty, ]Sr. Y., and the town (or, city; or, village) of , county, N. Y., described as follows (insert description of new highway or alteration) . Dated this day of , 190. . . Commissioners of Highways. To , and , Commissioners of Highways of the Town of (or as may be). FojjMs. 275 No. 91. Certificate of Disagreement. (§ 94, ante.) COTJNTY (or. Supreme) COUKT — County. In the Matter of the Application of to Lay Out {or, alter) a Highway Extending Into (or upon the boundary line between) the Town (or, city; or, village) of County, N. Y., and the Town (or, city; or, village) of County, N. Y., and the Assessment of Dam- ages Therefor. To the County Court of County, (or. To the Supreme Court of) New Yorh: We, the undersigned commissioners of highways of the town of , county, JST. T., do hereby certify that we differ with the commissioners of highways of the town of (or as may be) as to the laying out (or, altering) of a new (or, old) highway extending into (or, as the case may he) the town (or, city ; or, village) of , county, N". Y., and the town (or, city; or, village) of , in the county of , IT. Y. That the highway commis- sioners of said towns (or, of the said town, and the officers of the said city \_or, village], having the powers of commissioners of highways in the same county), camiot agree as to such highway (or, alteration) or the t«rms upon which the same shall he laid out (or, made), after having duly met to adjust and determine upon their differences (stating particulars as to meeting). S76 The Highway Law. Whekefoee, We ask that three commissioners be appointed, pursuant to section 94 of the Highway Law, to decide upon said matters. Dated this day of , , 190. . . Commissioners of Highways. (Add verification as in Form No. 15.) No. 92. Order Appointing Commissioners on the Foregoing Certificate. (§ 94, ante.) At a Term of the County Court of the County of , held in and for said County {or. At a Special Term of the Supreme Court, held in and for the Judicial District), at , in the of , on the day of , 190... Present — Hon , County Judge (or, Justice of the Supreme Court). \_Entitle as in Form No. 91.] On reading and filing the certificates of , and , highway commissioners of the town of , county, N. Y. (and of the highway commissioners or as may he of the , county, N. Y.), dated the .... day of , 190. ., stating (here state substance of facts in the certificates), and upon reading and filing the (enumerate all motion papers), and after hearing , of counsel for , and , of counsel for , opposed, it is hereby Oedeeed, That and , of the town of county, N. Y., be, and they Forms. 277 are hereby appointed commissioners to determine upon the neces- sity of laying out (or, altering) such highway and adjust the terms upon which such highway shall be laid out (or, altered), and appraise the damages therefor, and decide all questions that shall arise upon the hearing, and take such other action and perform such duties as are prescribed in section 94 of the Highway Law. . County Judge (or. Justice of Supreme Court). (For notice of appointment, oath of office, appointment of meet- ing, subpoena and oath of witnesses, etc., see Forms Nos. 74-79.) No. 93. Decision of Commissioners. (§ 94, ante.) ^Entitle as in Foi-m No. 91. J The undersigned, having been by an order of the County Court of county (or, the Supreme Court of the State of l^ew York), dated the day of , 190. ., appointed commissioners to certify as to the necessity of laying out (or, altering) a highway extending into the town (or, city; or, village) of , county, N. Y., and the town (or, city ; or, village) of , county, N". Y., and described as follows : (insert description) and to adjust the terms upon which the same shall be laid out, etc. l^ow, Theeefoee, We, the said commissioners, having taken the constitutional oath of office, and having determined upon a time and place of meeting, and all having met at , in the town of , on the .... day of , 190 .. , pursuant to such notice, and on proof of service of due notice thereof, viz., days' notice upon the (name all officials and persons interested), and having viewed the proposed highway (or, proposed alteration of a highway) and the lands through which it is proposed to be laid out (or, altered), 278 The Highway Law. and having heard all the evidence of the commissioners of high- ways and the parties interested therein, and the evidence of all the witnesses produced, and all evidence we deemed proper, and the arguments of counsel, do hereby report such evidence and decide and certify that it is necessary and proper that the highway be laid out (or, altered) as follows: (Describe highway or alteration.) And we have ascertained and appraised the damages to the individual owners or occupants of land through which such new (or^ altered) highway will pass by reason of the laying out and opening (or, altering) of such highway as follows: The damages of , at $ ; the damages of , at $ , all to be paid by the town of ; and the damages of , at $ , to be paid by the town of Witness our hands this day of , 190 . . . Commissioners. (Forms for proceedings to confirm, vacate or modify the com- missioners' report and to lay out the highivay may be readily adapted from Forms Nos. 82-84, ante. Upon laying out a highway upon the boundary line of towns, the order of the commissioners of highways should divide it into two or more highway districts, § 97.) No. 94. BifEerences About ImproTements. (§ 95, ante.) \^Adapt forms for these proceedings from Nos. 90-93, given for proceedings urider § 94.] Forms. 279 No. 95. Bescription of Highway Abandoned. (§ 99, ante.) We, the undersigned commissioners of highways of the town of , county, IN". Y., hereby certify, at a meeting thereof duly called and held for that purpose, that the following highway has not been traveled or used as a highway for six years (last past, or, has not been opened and worked within six years, etc.; or, as the case may he, under § 99, ante), and is no longer used as a public highway: (insert accurate description) and, pursuant to section 99 of the Highway Law, the same is discontinued. Witness our hands this day of , 190 . . . Commissioners of Highways. No. 96. Order to Open Highway by Use. (§ 100, ante.) To , as Overseer of Highways in Highway District No , of the Town of , County, N. Y.: Wheeeas, The following described land has been used by the public as a highway for a period of (more than) twenty years: (Insert accurate description), and has become a highway, with the same force and effect as if it had been duly laid out and recorded as a highway ; Theeeboee, The undersigned commissioners of highways of said town order you to open such highway to the width of two rods (or more). Witness our hands this day of , 190. . . Commissioners of Highways. 280 The Highway Law. No. 97. Notice to Remove Fences. (§ 101, ante.) To (owner or occupant) : Wheeeas, The undersigned, commissioners of highways of the town of , county, IT. Y., have, in con- formity with the Highway Law, laid out a highway, hy an order dated , 190.., and duly filed, which said road passes through inclosed (or, cultivated; or, improved) lands, owned (or, occupied) by you, and is described as follows (insert description). Now, Theeefoee, You will please take notice that- you are required to remove jonr fences from within the bounds of said highway, within sixty days after service hereof, in default whereof we shall cause them to be removed and direct said high- way to be opened and worked. Dated at said town this day of , 190. . . Commissioners of Highways. No. 98. Notice to Bemove Fallen Trees. (Id., § 103.) To occupant of, etc. : Please take notice that a tree has fallen (or as may he) from the inclosed land occupied by you in the town of , county, N. Y., viz., your orchard (or as may be), into the highway known as the road, at (state where), and you are hereby notified to remove the same within two days after the service of this notice ; and that if you fail to remove it within such time, you will forfeit the sum of fifty cents for every day thereafter vmtil it shall be removed- Dated this day of , 190. . . FoKMs. 281 No. 99. Order by Commissioners as to Encroachment TJpon Highway. (§ 105, ante.) At a meeting of the commissioners of highways of the town of , county, IST. Y., at , in said town, all the commissioners having met and deliberated on the subject embraced in this order, and having ascertained that the public highway in said town, leading from to , is encroached upon and obstructed on the side thereof, along the lands in the occupation of ) by a fence, which forms part of the inclosure of said land through which the highway leading from to (or otherwise describe it) has been laid out (or as may ie), which said fence has not been removed, although due notice to remove same has been given according to law, and, having caused the said highway to be surveyed, and, having ascertained the true bounds and limits thereof on that side to be upon the following line (here insert the survey of the line over which the encroachment is made), we do now determine that the strip of land which lies between the said fence and the line above described is a part of the public highway aforesaid, and that so much of said fence as is (north) of said line is an encroachment upon said highway; therefore. It is Oedeeed, By the commissioners of highways of said town that the said fence be removed so that the highway may be open and unobstructed. Witness our hands at said town this day of , 190... Commissioners of Highways. No. 100. Order by Com.missioners as to Obstructions. (§ 105, ante.) [Adapt from the foregoing order.] 282 The Highway Law. No. 101. Notice to Bemove Obstruction or Encroaclunent. (Id., § 105.) To : You are hereby notified by the undersigned commissioners of highways of the town of , comity, N. Y., that they have determined by an order, a copy of which is hereby annexed and made a part hereof, that the highway in Highway District No in said town, adjoining land owned {or, occupied) by you {state where) and known as the road, has been and is encroached upon {or, obstructed) as follows : A fence erected by you and forming a part of the inclosure of your said land encroaches, etc. {continue the description of the encroach- ment or obstruction, giving notice so precise and explicit as to enable the person upon whom it is served to fix the place and extent thereof without dovht or uncertainty, and, if possible, attach a sur- vey showing the conditions complained of) ; and you are hereby directed to remove the same within {Twt more than sixty) days after the service of this notice ; and that, if you fail so to do, you become liable to the penalty and costs of removal or the relief prescribed by section 105 of the Highway Law. Witness our hands this day of , 190 . . . Commissioners of Highways. No. 102. Application to Lay Out Private Koad. (§ 106, ante.) To , and , Commis- sioners of Highways of the Town of , County, N. Y. : The undersigned, who resides in and who is liable to be assessed for highway labor in your town, hereby makes application to you FoEMs. 283 to lay out a private road for his use and benefit, beginning {insert description, specifying its width and location, courses and dis- tances), and said proposed road will run through the land of , occupied by (etc.). Dated this day of , 190 . . . (^Signature.) No. 103. Notice of Selecting Jury to Determine necessity of Road. (§ 107, ante.) In the Matter of the Application of for a Private Road in the Town of , County, N. Y. , of the town of , , county, N. Y., having made a written application to us, the under- signed, as commissioners of highways of said town, to lay out a private road for his use and benefit in said town, a copy of which is hereto attached, you are hereby notified that a jury will be selected at the (designate the place) in said town, on the day of , 190 . . , at o'clock in the noon, for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof. Dated this day of , 190. . . Commissioners of Highways. To , and (name all owners and occupants). 284 The Highway Law. No. 104. Afladavit of Service of Notice. (§ 109, ante.) ^Entitle as in Form No. 103. J STATE OF NEW YOEK, ) County of /■««..• Town of ) , being duly sworn, says that he is twenty-one years of age ; that on the day of , 190 . . , he served the application and the notice hereto attached, which were received by the applicant herein , 190.., on , and , residents of said town, by delivering to and leaving with each of them copies of the same ; on and , residents of, but then absent from said town, by leaving a copy thereof at the residence of each of them ; on and , non-residents of said town, by depositing in the post-office a copy thereof to each, prop- erly inclosed in an envelope and addressed to them, respectively, at their post-office addresses, and paying the postage thereon; on , an infant owner and resident of said town, by delivering to him and to , his father {or, mother; or, guardian), a copy thereof; on , an infant owner and resident of said town, but absent therefrom, by leaving a copy of the same at his residence and delivering a copy thereof to his father (or as may be) ; and on , an infant owner and non-resident of said town, by depositing in the post-office copies thereof, addressed to him and his father (or, mother; or, guard- ian), each properly inclosed in an envelope and addressed to them, respectively, at their post-office addresses, and paying the postage thereon. Deponent further says that he knew each of the persons so served as aforesaid to be the same persons to whom the said notice is addressed. Subscribed and sworn to before me this day of , 190.. . Notary Public. FoKMs. 285 No. 105. Summoning Jury. (§ 112, ante.) In the Matter of the Application of for a Private Road in the Town of , County, N. Y. To , , , , and (insert the names of the six jurors selected) : You are hereby summoned and required to appear at the , in said town of , on the day of , 190 . . , at o'clock in the noon, the same being a convenient time and place designated by us for you to meet, to form a jury of freeholders to determine as to the neces- sity of laying out a private road through the lands of , and to assess the amount of damages sustained by reason of the opening thereof, if it is determined to open the same. Dated this day of , 190. . . Commissioners of Highways. No. 106. Oath of Jurors. (§ 113, ante.) You do solemnly swear, in the presence of the ever-living God (or, affirm) that you will well and truly determine as to the neces- sity of a private road across the lands of , as has been applied for by , and that you will well and truly assess the damages by reason of the opening of such road. 286 The Highway Law. No. 107. Oath, of Witnesses. You do solemnly swear (or, affirm) that the evidence you shall give, touching the necessity of laying out the private road as applied for by , and the damages to be sustained by the opening thereof, shall be the truth, the whole truth, and nothing but the truth, so help you God. No. 108. Verdict of Jury, (i 114, ante.) In the Matter of the Appllcatlo n of for a Private Bead in the Town of County, N. Y. We, the undersigned, being twelve disinterested resident free- holders of the said town of , having met pursuant to due notice, on the day of , 190. ., at , in said town, and having been duly sworn, well and truly to determine as to the necessity of the private road described in the application of , a copy of which is hereto attached, and the damages occasioned by the opening thereof, and having viewed the premises through which it is proposed to be laid out, and having heard the allegations of the parties and all wit- nesses produced by them and the evidence produced, do hereby determine and certify that it is necessary and proper to lay out a private road for the use and benefit of , pursuant to his said application, as follows (insert description), and we deter- FoEMs. 287 mine and assess the said damages of at $ , and of at $ Dated this day of , 190. . . Jurors. {For proceedings upon verdict, see Forms Nos. 82-83.) No. 109. Order of Highway Commissioners Iiaying Out Private Boad. (§§ 81, 116, ante.) Wheeeas, did present to us, as commissioners of hoghways of the town of county, ]N". Y., a writ- ten application to lay out a private road in said town for his use and benefit, hereinafter described ; and due proceedings being had, and twelve disinterested freeholders having' met, after due notice to the owners and occupants of the lands through which said road is proposed to be laid, and, after viewing said lands and hearing the allegations of the parties and witnesses produced, certified that said road is necessary and proper, and assessed the damages to be caused by the opening thereof, which certificate and verdict bears date the .... day of , 190. ., and was duly filed and recorded, with said application, in the office of the town clerk of said town ; and, Wheeeas, !N"o motion has been made to the County Court to confirm, vacate or modify said decision (or as the case may be) ; iN'ow, Theeefoeb, We, the imdersigned commissioners of high- ways of said town, at a meeting duly called and held for that pur- pose, pursuant to the Highway Law, do hereby lay out said private road as so applied for and certified to, whereof a survey has been 288 The Highway Law. made as follows (here insert survey), and the line of survey is to be the center of the road, which is to be rods in width. Witness our hands this day of , 190 . . . Commissioners of Highways. No. 110. statement to the Supervisor of the Expenses of Bridges. (Id., § 132.) To , Esq., Supervisor of the Town of , County, N. Y. : We, the undersigned commissioners of highways of the town of , county, 'N. Y., pursuant to section 132 of the Highway Law, hereby render a statement of the expenses incurred by us in the erection {or, repair, or both) of the free public bridges of said town, with description thereof, as fol- lows (give a description of each free bridge and an itemized account of the expenses incurred on the same). Dated this day of , 190. . . Commissioners of Highways. STATE OF NEW YORK, ) County of \ st.: Town of ) , being duly sworn, says that he is one of the commissioners of highways of said town, and that the foregoing statement, which is subscribed by him, is in all respects true and correct. Subscribed and sworn to before me this day of ,190. .. Notary Public (or as may be). loEMs. 289 NO. m. notice to Commissioners of Adjoining Towns. (§ 135, ante.) To the Commissioners of Highways of the Town of , County, N. Y. : You Will Please Take Notice, That the bridge known as the bridge, the same being a bridge constructed over a stream upon the boundary of your said town and our town, and for the construction and repair of which said towns are jointly liable, is in need of repairs in the following respects (stating them; or, of rebuilding), and you are notified to within twenty days after service hereof on you give your consent in writing to repair (or, rebuild) the same, and to, within a reasonable time thereafter, do the same, in default whereof we shall proceed as authorized by the Highway Law in such cases. Dated this day of , 190 .. . Commissioners of Highways of the Town of , County, N. Y. No. 112. Consent to Repair or Rebuild Bridge. (§ 135, ante.) To the Commissioners of Highways of the Town of , County, N. Y. : In compliance with your notice served on us, dated the day of , 190. ., and pursuant to section 135 of the Highway Law, we, the undersigned commissioners of highways of the town of , county, N. Y., hereby consent to join with you in repairing (or, rebuilding) the bridge mentioned in your said notice. Dated this day of , 190. . . Commissioriers of Highways. 19 290 The IIiGirwAY Law. No. 113. Petition of Freeholders to Commissioners of Adjoining Towns. (§ 136, ante.) STATE OF NEW YOEK, | County of > ss.: Town of ) To , and , Commissioners of Highways of the Town of , County, N. Y., and , and , Commissioners of Highways of the Town of , County, N. Y. : We, the undersigned, , and , do respectfully petition and apply to you, pursuant to section 136 of the Highway Law, and show that we are severally freeholders of the said town of , and that the bridge known as (here designate the bridge), which crosses the (name the stream), a stream forming the boundary line between said towns of and , has become and is out of repair (state in what respects) ; that said bridge is required to be repaired and maintained by the joint expense of said towns, and said towns are jointly liable to make and maintain a bridge at said point. And we hereby petition and apply to you, the said commis- sioners, to rebuild (or, repair) the bridge at said point. Dated this day of , 190. . . (Signatures. ) (Verification as in Form No. 15.) No. 114. Refusal to Repair, Etc. (§ 136, ante.) To , and , Freeholders of the Town of : We, the undersigned commissioners of highways of the towns of and FoEMs. 291 county, N. Y., having been duly served with your petition, bearing <^*te the day of , 190. ., relating to the (designate bridge) on the (designate stream), do hereby refuse to rebuild (or, repair) said bridge for want of funds (or as the case may he). Dated this day of , 190 . . . Commissioners of Highways of the Town of Commissioners of Highways of the Town of No. 115. Notice of Motion. (§ 136, ante.) SUPREME COUET — County. In the Matter of the Application of , and Certain Freeholders of the Town of , County, N. Y., for an Order Requiring the Commissioners of Highways of the Towns of and to Rebuild (or, repair) a Joint Bridge Known as the Bridge. You Wilt. Please Take I^otice, That on the affidavits (and other papers), copies of which are herewith served on you, and 292 The Highway Law. upon our application, served upon you , 190. ., and upon proof of service thereof and upon your refusal, an application will be made to this court, at a Special Term thereof, to be held at the court house, in the of , on the day of , 190 . ., at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order requiring you, the said commissioners, to rebuild {or, repair) the bridge mentioned in the affidavit hereto attached, and requiring money to be appropriated or raised therefor, and for such other and further relief as to the court may seem just, with costs of this motion. Dated this day of , 190. . . (Signature.) To and Commissioners of Highways of the Town of , County, N. Y. To and Commissioners of Highways of the Town of , County, N. Y. No. 116. Affidavit for Order to Rebuild or Bepair Bridge. (§ 136, ante.) {^Entitle as in preceding form.'] STATE OF ISTEW YOKK, \ County of \ ss.: Town of ) , and , being duly severally sworn, say, each for himself, that he is a freeholder in the town FoEMs. 293 of , county, Is. Y. ; that said town joins the town of , county, and the (name the stream) forms the boundary line between said towns; that at (describe where) a bridge has been maintained at the joint expense of said towns, and said towns are jointly liable for the building, rebuilding, repairs and maintenance of such bridge; that such bridge is (describe the bridge) and it has become, and is in. want of repair (or, rebuilding) for the following reasons (describe fully the condition the bridge is in) ; that on the day of , 190. ., the above-named affiants united in a petition to , and , commis- sioners of highways of the said town of , and , and , commissioners of highways of the said town of , pursuant to section 136 of the Highway Law, which petition was as follows (insert it), and was duly served on each of said commissioners ; that thereafter and on the day of , 190. ., said commissioners served on us a written refusal as follows (here set forth the refusal) ; that in our opinion the bridge should be repaired (or as may be), and that the expense should be between $ and $ Severally subscribed and sworn to before me this day of , 190 . . Notary Public. (The foregoing affidavit should be as full as possible to avoid the necessity of a reference for failure to show the material facts.) 294 The Highway Law. No. 117. Order of the Court to Bebuild Bridge. At a Special Term of the Supreme Court, held in and for the Judicial District, at the Court House in the of , on the .... day of , 190... Present — Hon , Supreme Court Justice. ^Entitle as in preceding form.] On reading and filing the afiidavit of , and , verified the day of , 190 . . , set- ting forth that (here set forth the substantial facts of the affidavit), and upon reading and filing the application therein mentioned, with proof of due service of said application, and a copy of said affidavit and notice of this motion upon each of the commissioners of highways of said towns, and after hearing , of counsel for said applicants, in favor of said motion, and , of counsel for the said commissioners, opposed, it is hereby ordered, pursuant to section 136 of the Highway Law, that said commis- sioners build (or, repair) the said bridge at (here describe the place), at the joint expense of said towns, not to exceed $ , and that (one-half) of the said expenses shall be chargeable to the said town of and (one-half) thereof to the said town of (The followiii'j directions and forms are taken from the latest instructions of the State Engineer and Surveyor and should he rare full II followed in all proceedings of this nature. It must he noted, howerer, that these forms have not been changed in alt respects to confoiin to the amendments of the law, and particular care should be tahen that proper changes to conform to such amendments be made as needed) : FoEMs. 295 No. 118. Petitions, Kesolutions, etc., for Improvement Under " Oood Boads Law." (L. 1898, ch. 115, L. 1901, ch. 240, ante.) In order that the provisions of the law providing for the pre- lianinary steps to be taken for the improvement of highways by State aid, may be fully complied with, and for the convenience of petitioners for such improvement and the boards of supervisors presenting resolutions, I append hereto blank forms covering this Bubject. Form " A " is the petition to be presented by property owners to the board of supervisors asking for improvement of the highway. Form " B " is the certificate to be attached to said petition. Form " C " is the resolution to be adopted by the board of supervisors in cases where property owners present petitions to the board asking for such improvement. Form " D " is the resolution to be adopted by the board of supervisors in cases where no petition is presented by the property owners. Form " E " is the final resolution to be adopted by the board of supervisors upon presentation of plans, specifications and esti- mate of cost of the proposed work, whether said work is called for by petition of property owners, or upon resolution of the board of supervisors only. The resolution covered by Form " F " should also be adopted at the same time that the resolution covered by Form " E " is adopted, providing the improvement is undertaken upon a resolu- tion of the board of supervisors only. The resolution covered by Form " G " should be adopted in connection with Form " E " in cases where the improvement is called for by petition of the property owners. In some cases it is necessary to procure a right of way, in which ease the resolution covered by Form " H " should also be adopted by the board of supervisors in connection with the resolution covered by Form " E." 296 The Highway Law. It is suggested that the above forms be carefully followed in all cases, thus facilitating the progress of the various steps pre- liminary to the prosecution of the work. Especial care should be used in describing the road covered by the petition, giving its length, termini, town within which located, etc. " A." FoEM TO BE Used in Petition foe the Impeovement of High- ways TO BE PeESENTED TO THE BoAED OF SuPEEVISOES BY A Majoeity of the Peopeety Ownees. To the Honorable the Board of Supervisors of County : The undersigned respectfully represent: First, That they are the owners of a majority of lineal feet of real estate fronting on the following public highway, within the county of , to^vn of , and described as follows : being a distance of about miles. Said road above described being known as the road. Second, Believing that public interest demands the improve- ment of that section of said highway, described as follows: We respectfully petition your honorable body to pass the neces- sary resolution, requesting that such highway be improved under the provisions of chapter 115 of the Laws of 1898. !Name of Peopeety Ownees. {Write names here.) Feontage in Lineal Feet on Peopeety Desceibed. {Number of feet here.) FoEMs. 297 " B." Iw Cases Wheue the Propeety Owners Petitiow* the Board OE Supervisors foe the Improvement of Highway, the Following Certificate Should be Attached to the Petition, by the Clerk of Each Town Through Which Passes the Highway Desired to be Improved. This certifies that I have examined the annexed petition, and have compared the names of the signers thereto, with the descrip- tion of the property as shown upon the assessment-rolls of said to^wn of , county of , K T., for the y®^^ , and I do hereby certify that the persons signing the annexed petition, are the owners of a majority of the lineal feet fronting on that part of road in the town of referred to and described in the annexed petition. Dated Witness to signature, ' Town Clerk of the Town of , County of ,N.Y. " C." Form of Eesolution to be Adopted by the Board of Supee- visoRs IN Cases Where Petition is Made by the Prop- eety OWNEES FOE THE ImpEOVEMENT OF HiGHWAY. Wheeeas, On the day of , 19 . . ., there was duly presented to this board, pursuant to sections 1 and 2 of chap- ter 115 of the Laws of 1898, a petition from the property owners of a majority of the lineal feet fronting on the section of a certain highway, situate within the county of , and which section is herein described, setting forth that the petitioners are such owners, and asking that said section of the highway be improved, under the provisions of the act referred to ; and, Wheeeas, Such description does not include any portion of the highway within the boundaries of any city or incorporated village; therefore, 298 The Highway Law. Resolved, That public interest demands the improvement under the provisions of chapter 115 of the Laws of 1898, of the section of that public highway situate in the town of , county of , and described as follows : being a distance of about miles. Resolved, That the clerk of this board is hereby directed to forthwith transmit a certified copy of the foregoing resolution to the State Engineer and Surveyor. STATE OF NEW YOEK, County. SS ' Office of the Cleek of the Board ( OF Supervisors. This is to certify that I, , clerk of the board of supervisors of the county of , have compared the foregoing resolution with the original resolution now on file in this office, and which was passed by the board of supervisors of said county of , on the day of , and that the same is a correct and true transcript of such original resolution and the whole thereof. In Witness Whereof, I have hereunto set my hand and the official seal of the board of supervisors, this .... day of , 19.... Clerh of the Board of Supervisors of County. " D." FoEM OF Resolution to be Adopted by the Boaed of Supee- visoES Wheee 'NO Petition is Presented by the Prop- erty Owners. Whereas, At a meeting of the board of supervisors of county, N. Y., held in the of , on FoBMs. 299 "16 day of , 19 ... , a quorum being present and a majority voting in the affirmative, -the following resolution was adopted: Resolved, That public interest demands the improvements* under the provisions of chapter 115 of the Laws of 1898, of that section of public highway situate within the to-^vn of county of , and described as follows : being a distance of about miles. The above description does not include any portion of a highway within the boundaries of any city or incorporated village. Resolved, That the clerk of this board is hereby directed to forthwith transmit a certified copy of the foregoing resolution to the State Engineer and Surveyor. STATE OE NEW YOEK, County. , ss. : Office of the Clekk of the Boaed of supekvisoes. This is to certify that I, clerk of the board of supervisors of the said county of , have compared the foregoing copy of resolution with the original resolution now on file in the office, and which was passed by the board of super- visors of said county of , on the .... day of , 19 ... , and that the same is a correct and true transcript of sudi original resolution and the whole thereof. In Witness Whereof, I have hereunto set my hand and the official seal of said board of supervisors this day of , 19... Cleric of the Board of Supervisors of the County of • So in the original. 300 The Highway Law. " E." Form of Finai. Eesolcftion to be Adopted by the Board of Supervisors Approving and Adopting the Plans, Speci- fications AND Estimate of Cost of the Proposed Improvement After Same Have Been Presented by the State Engineer and Surveyor. 1. Whereas, At a meeting of this board, held on the day of , 19 . ., a resolution was adopted that provision should be made for tlie improvement of that portion of the high- way commonly known as , and described as follows : in accordance with the provisions of chapter 115 of the Laws of 1898 ; and, 2. Whereas, The State Engineer and Surveyor has investi- gated and determined that a section of said highway is of sufR- cient public importance for improvement in accordance with the provisions of said chapter 115, and has certified his approval of the said resolution adopted by this board on the said day of , 100—; and 3. Whereas, Said State Engineer and Surveyor has caused a section of said highway, which section is described as follows: to be surveyed and mapped, and has caused plans and specifica- tions and an estimate of cost to be made for said improvement, and has transmitted the same to this board; 4. EesoJred, That the highway known as the road, above described in paragraph one, be improved and con- structed in that portion thereof above described in paragraph three in accordance with the maps, plans, specifications and estimate ]irepared for such improvement by the State Engineer and Surveyor under the provisions of chapter 115 of the Laws of 1898. That said work be done under the charge, care and superintendence of the State Engineer and Su.rveyor, and FOBMS. 301 that said maps, plans, specifications and estimate prepared by said State Engineer and Surveyor for said work, are hereby duly approved and adopted by this board. 5. Resolved, That the treasurer of the county of is hereby authorized and directed to pay upon the requisition or draft of the State Engineer and Surveyor the sum of dollars ($ ), being one-half of the estimated expense, which amounts to $ , for improving and constructing in accord- ance with the provisions of chapter 115, Laws of 1898, the section of road as described in paragraph three, from any unappropriated funds in his hands ; and if he should find it neces- sary, he is instructed and directed to issue the note of the county for such a sum as is necessary to meet such requisition or draft, and said sum is hereby made available, subject to the draft of the State Engineer and Surveyor. I hereby certify that the above is a true copy of the resolution passed by the board of supervisors of county, at a meeting held on the day of , 19 . . . (Attach seal here.) Clerh of the Board of Supervisors. F." EOEM OF KeSOLUTION TO BE ADOPTED BY THE BoAED OF SuPEE- VISOES IW CONN-EOTION WiTH FoEM " E," IS CaSES WhEEE THE ImPBOVBMESTT OF HlGHWAT HaS BeEKT UnDEETAKEN Upoit a Eesolutiow of the Boaed of Supeevisoes Only, AND NOT Upon the Petition of the Adjacent Peopeety Owners. Resolved, That of the total estimated cost of said improvement, amounting to $ , thirty-five per cent, thereof, amount- ing to $ , shall be paid by the county of , and said thirty-five per cent. ($ , ), together with the accumulated interest thereon, shall be inserted in the general tax levy for the year ; and that fifteen per cent, of said total, amounting to $ , shall be paid by the town of , 302 The Highway Law. and said fifteen per cent. ($ ), together with the accumu- lated interest thereon, will be added to the amount of tax to he raised in said town of in the levy of I hereby certify that the above is a true copy of the resolution passed by the board of supervisors of county, at a meeting held on the day of , 19 . . . Clerh. {Attach seal.) " G." FoEM OP Resolution to be Passed by the Boaed of Super- ^isoEs IN Connection "With Foem " E," in Cases Wheee THE ImpEOVEMENT OF HIGHWAY Has BeEN UnDEETAKEN Upon the Petition of the Peopeety Ownees and the Resolution of the Board of Supervisobs Only. Resolved, That of the total estimated cost of said improvement, amounting to $ , thirty-five per cent, thereof, amoimt- ing to $ , shall be paid by the county of , and said thirty-five per cent. ($ ), together with the accumulated interest thereon, shall be inserted in the general tax levy for the year ; and that fifteen per cent, of said total, amounting to $ , shall be assessed upon and paid by the owners of the lands benefited by said improvement, to the extent and in the manner provided by the provisions of chapter 115, Laws of 1898, relating thereto. I hereby certify that the above is a true copy of the resolution passed by the board of supervisors of county, at a meeting held on the day of , 19 . . . Clerh. (^Attach seal.) FoEMs. 303 " H." FoKM OF Resolution to be Adopted by the Boaed of Supee- visoEs Peovidustg foe Acquisition of the Eight of Way. This Resolution to be Passed (Wheee Necessaey), in Connection With the Resolution Adopting Plans, Specifications and Estimate Submitted by the State Engi:^'eee and Sueveyoe, in Form " E." Resolved, That the chairman of this board appoint a committee of three, which committee is hereby authorized to secure the requisite right of way for the section of the road in the town of , county of , N. Y., which is to be improved in accordance with the provisions of chapter 115, Laws of 1898. That said committee is authorized to obtain said right of way, either by dedication or legal proceedings, as may be necessary, in order that said right of way shall conform to the boundaries of the section of said road as laid out in the maps and plans pre- pared for the improvement of said road under the direction of the State Engineer and Surveyor, wherever the boundaries of the proposed new section of said road deviate from the present bound- aries and cross the present section of the existing highway. The said committee are directed to procure such right of way at the earliest time practicable, and as soon as the same is secured, the committee shall report to the clerk of the board of supervisors, who shall notify the State Engineer and Surveyor in writing; this notice shall be considered proof that the board of supervisors have complied with paragraph 7 of chapter 115 of the Laws of 1898. I hereby certify that the above is a true copy of the resolution passed by the board of supervisors of county, at a meeting held on the day of , 19 . . . Clerh. (Attach seal.) 304 FoKMS. No. 119. Notice to Cut Weeds, Bemove Fences, Etc. (§ 71, ante.) To (owner or occupant) : You WILL PLEASE TAKE ryOTiCE, That you are hereby required to cut all noxious and other weeds, briers and brush growing within the bounds of (and add if desired: and to remove all fences, shrubbery or other obstruction \_descfihing thein~\ causing snow to drift in or upon) the road in the to^vn of , county, N. Y., at the point where your farm (or as may be) abuts upon the same within ten days after the sendee hereof upon you (or, after the receipt hereof; or, after date), in default whereof I shall proceed accord- ing to the provisions of section Yl of the Highway Law. Dated this day of , 190. . Yours, etc., Overseer (or, Comm.issioner) of Highways. No. 120. Petition for Construction of Sidewalk, (§ 45, ante.) To the To^vn Board of the town of , county, N. Y. : We, the undersigned taxpayers of the said town, respectfully request that you, by resolution, direct the commissioner oi high- ways of said town to construct a sidewalk along (describe loca- tion), as provided in section 45 of the Highway Law. Dated this day of , 190. . (Signatures.) INDEX. [Attention is again particularly directed to the numerous cross refer- ences to be found upon many of the pages indicated in the index.] A. ABANDONMENT: Page. of highways, generally 109-111 failure to open and work 109 suspension of statute Ill failure to use 109-111 though obstructed by trespasser . . . ; 110 failure to work, not 110 applies to highways by dedication 110 as to streets of cities 110 presumption against 110, 111 effected only where facts undisputed 109 compulsory, not conclusive 110 description of abandoned highway 109-111 not necessary 110 reversion of land upon 110, 111 special act with reference to 109 ABATEMENT (see Tax) : of taxes for planting shade trees 55 for maintaining watering troughs 67 for removal of fences 73-74 for maintaining street lamps 74 for using wide tires only 74-75 ABUTTERS (see Obstructions and Enceoachmbnts) : rights of as to soil of highway 6-7, 90-91 rights of in highways, generally 90-91 ovm fee of highways, generally. 90 entitled to lateral support from highways 91 ACCOUNTS: how made out 306 Index. ACTIONS: Page. for injuries to highways 26, 27 for injuries from defective high-ways (see Negligence) 27-37 by towns for negligence of commissioners 38 for failure to work on obstructed highway 43-44 against overseers for penalties 45 ADJOINING OWNEES (see Abutteks). ADJOURNMENTS: by commissioners, generally 130 ALTERING HIGHWAYS (see Highways). ANTICIPATION OP TAX (see Tax). APPEALS (see Actions; Highways): from assessment of non-resident lands 52 from laying out highway on dedication or release 76 from decision of court on motion to confirm, etc 92-96 from order appointing commissioners 106 from order to build, etc., bridge 138-139 ASSESSMENT (see Highway Labok; Tax): of highway labor, generally 49-52, 52-54 omitted persons 51, 53 credit on for work on private roads 52 separation of, for tenants 52, 53 deduction of, by tenants 53 reassessment of delinquent's tax 53 new, by overseer 54 under money sj'stem 58-60 for unperformeil labor 70 AUDIT: of expenses of repairs 22 of damages without action 38-39 of damages and costs on laying out, altering, etc., highway, 101-102 AUTOMOBILES (see Cakeiages; Law of the Koad; Motor \'ehicle Law) : registration of 152, 206c. 206d use of highways by; speed of 152, 206e, 206i brakes and lamps upon 152, 206g stopping on signal 153, 206f licenses and permits 153, 206c, 206e of chafEeurs 206i-206j initials of owner's name upon 206c-2O6d penalties for violating law 153, 206J-2061 Index. 307 B. BENEFITS (see Highway; Pbivate Koads). Page. BICYCLES: sidepaths for 3 no special precautions required for 34 included in term " carriage " 149-150 entitled to free use of highway 149-151 riding on sidewalks 150-151 BONDS (see Good Roads Law) : for highway purposes 59 BBIDGES (see Action; County Supervision of Highways; Negligence; Tax): corporations maintaining, etc 3 canal law, relative to 3 care of, generally 4-9, 13, 14, 20-22, 131-140 unsafe toll-bridge 24-25 liability for injuries to 26-27 liability of towns for defective 27-37 liability of commissioners for defective 38 reports of commissioners as to 39-40 care and maintenance of, generally 131-140 whether town or county expense 131-134 statement of expenses for 134 levying tax for expenses of 134 joint liability of towns for 134-139 joint contracts for 134-135 refusal to repair 135-138 proceedings thereupon 136-137 commissioners to institute them 137 appeal from order 138 carrying out order of court 137 report of proceedings 137-138 proceedings by freeholders 136-137 penalty for fast driving upon 139-140 payment for certain iron, upon certificate only 140 town not liable for breaking under certain load 142 but person breaking, is liable 142 BUILDING: highway through 96-100 liURYING GROUND: highway through 100 308 Index. c. CANAL LAW: ^'^S^- relative to highways and bridges 3 CARRIAGES (see Law of the Road; Automobiles): what are 149-150 entitled to free use of highways 150-151 public, intemperate drivers of, not to be employed or retained 1*8 horses attached to, not to be left untied 149 owners of, liable for acts of drivers 149 CATTLE: on highways 16 CERTIORARI: decision of County Court, not reviewable by 94 COMMISSIONER DISTRICT: formation of 46 duties of commissioners in 46-47 COMMISSIONERS — On laying out, altering or discontinuing highways (see Highways; Refusal). COMMISSIONERS OF HIGHWAYS: treasurer of 3-4 where only one, has same powers as three 4 general powers of 4-16 repair of highways and bridges (see Repairs) 4-9, 14 inspection and report of condition of highways and bridges 4-5, 39-40 require overseer to warn persons to work 13 divide towTi into highway districts 10-11 establish separate highway districts 10-11 assign highway labor 11, 50 appoint overseers 11-12 expend highway moneys 12-13 protect highways and bridges from streams, etc 13-14 require overseers to inspect and report condition of high- wajs and bridges 14 miscellaneous general powers and duties of 14-]6 election of 15, 179 eligibility for election as 15 oath of office of 15, 182 abolition of office of 180 Index. 309 COMMISSIONERS OF HIGHWAYS — Continued: Page. undertaking of 15, 182-183 term of office of 15, 179 vacancy in office of 15, 183 resignation of 15, 183 removal of 16 compensation of 16, 185 are fence viewers 16, 180 are water commissioners 26 purchase of apparatus for lire company by 16 duty of, as to cattle on highways 16 delivery of books to successor 16, 184 erect guide-boards, etc 16-17 may purchase road machines, etc 17-18 may purchase stone crusher, etc 18-19 duties of, as to unsafe toll-bridge 24-25 reports of (see Bridges) 39-40, 184-185 in separate commissioner districts 46-47 meetings of 47-48 make lists of non-resident lands 48-49 assess highway labor (see Assessments) 49-52, 52-53 duty to see weeds are cut 60-61, 72-73 and report expense thereof 72-73 duties as to private roads (see Private Koads). duties as to laying out, altering and discontinuing highways (see Highways). duties as to bridges (see Bridges). duties as to county roads 157-158 report as to county roads 160 COMMUTATION (see Highway Labor). CONSTITUTIONAL : provisions against local or private highway legislation 2-3 what is private or local bill 3 provisions as to oath of office 182 provisions as to private roads 167 provisions as to taking private property 167 CONSTEUCTION: of this act 162-163 CONVICTS highwa CORPORATIONS (see Assessment; Highway Labor) highway labor by 67 310 Index. COSTS: Page. on laying out, etc., highway 100-102 on laying out, etc., private road 128, 129 on motion to confirm 141, 148 COUNTY ENGINEER (see County Stjpervi6ion of Highways). COUNTY LAW: relative to highways and bridges 169-178 COUNTY SUPERVISION OF HIGHWAYS AND BRIDGES: adoption of fil-62, 156 county engineer; deputy; appointment; duties 6:.', 157-160 expenses under 61-65 bonds therefor; sui'plus therefrom 65, 160 supervisors and engineer have charge of roads 62-64 contracts and payments for highways 158-159 construction of bridges under 159 commissioners' and engineers' reports under 160-161 ret urn to former system 161 county law relative to highways and bridges 169-178 CROSSINGS (see Railboad; Law of the Road). D. DAMAGES: audit of, without action (see Audit) 38-39 to be assessed 86-91 to be audited 101-102 for private road 124-128- DECISIOX — Of commissioners on laying out, etc., highway (see Highway) . DEDICATION: highways by 76-78 DISCONTINUING HIGHWAYS (see Highways). DISTRICT (see Highway District; Highway Labob). DRAINAGE PIPES: in highways 25, 2& Index. 311 E. ELECTBIC LIGHTS (see Obstbuctions and Encboachments). Page, lines for, in highways 116 117 ELECTRIC EAILEOADS: damages to abutter from 91 ELEVATED EAILEOADS: in highways 123 ENCEOACHMENTS (see Obstbuctions and Enceoachments). ENGINEEE (see County Supebvision op Highways). ESTEAYS: upon highways 16 ' EXEMPTIONS: from highway labor 49 EXTEA VIAM: right of 118 F. FEE (see Abuttebs). use of soil taken from 6, 7 only, taken generally 90-91 FENCES (see Obstbuctions and Enceoachments) : commissioners of highways are fence viewers 16 general provisions as to 16 wire to prevent snow blockade 44, 204-205 abatement of tax for removing 73-74 removal of, on laying out highway 113 removal of, to prevent snow blockade 13, 60, 72, 118 PEERIES: licenses for, and general provisions 154-156 undertaking for proper conducting of 155 appendages for rope ,155 at tide-water, leasing right of 155 posting schedules of rates 156 FILING PAPERS: generally 141 as to public highway 107-109 as to private road 127-128 certain contracts of commissioners 60, 203 FINES (see Commutation Money; Penalties): collection of 39, 40 312 Index. FIEE COMPANY: Page. commissioners of highways to purchase apparatus for 18 FORMS (see table of, preceding Form No. 1, mite). a. GAEDEN: highway through 96-10(> "GOOD EOADS LAW:" petition for improvement 189, 190 resolution by supervisors 189 investigation by State engineer 189 maps, plans and specifications 190 estimate of costs 190, 191 determination to construct 190 securing right of waj- 190, 196-201 advertising for bids; awarding contracts 190-191 construction, order of 192 closing during 193 payment of expenses; assessment. 192-19J acceptance and maintenance 193-194 expense of maintenance 193-194 money tax for 195 additional road to connect improved roads 194-195 statistics; consultation of State engineer; annual report... 195-196- commissioners of highways to furnish information 196 no special acts to interfere 196 street surface railroads across 196 when in effect 196 act supplemental to 3, 196-201 drains and ditches 194 GEADE: change of 9, 32, 23 use of soil upon change of 6,7 GUIDE-BO AEDS, ETC.: erection of 16-17 penalties for injuring 16 H. HIGHWAY DISTEICTS {see Commissioneb Districts; Highway Labor; Highways): formation of 10-11 formation of separate 10-11 assignment of labor to 11 of road on town line 106-lOT Index. 313 HIGHWAY LABOR {see Assessment; Tax): Page. assignment of 11 overseer's warning to perform 12, 40 report of 39 on unopened road 50 assessment of (see Assessment) 49-54 performance of, etc 66-69 notice to work 66-67 to non-residents 67 commutation, report of m.oney received 39 rate and payment of 40, 66-68 teams and implements for 67-68 substitutes for 68-69 penalties for failure to perform 69-70 excusing failure to perform 69 assessment for unperformed 70 collection of arrearages for unperformed labor 71 credit for, on private road 52 exemptions from 49 convicts to perform 67 abatement of («ee Tax). HIGHWAY LAW: this chapter known as 2 compilation of 2 is a consolidation and revision of prior laws, with addi- tions 2 does not apply to Indian lands 2 acts supplemental to 3 laws repealed by 162, 164-166 when in effect 163 construction of 162-163 saving clause 162 when became a law 1 HIGHWAYS (see Bridges; County Supebvision of Highways; Highway Districts; Highway Labor; Highway Law; Law of THE Eoad; Obstructions, etc.; Private Eoads; Railroads; Trees) : powers of supervisors over highways and bridges., 3, 169-178 in villages ^ canal law, relative to '3 rivers and streams as 3 rights of abutters (see Abutters) 90-91 lighting of, special act 3 classification of ^2' ^* 314 Index. HIGHWAYS — Continued: Page. by use 9-10, 111-113 cattle upon 16 drainage, etc., pipes in 25, 26 injuries to 26-27, 142 liability of town for defective 27-37, 38-39 penalty for throwing stones, etc., into 40-41, 152 laying out, altering and discontinuing 75-113 by dedication 76-78 following receding shore line 78 order upon 79-80 sur%'ey upon 79-80 application for 80-82 application for commissioners upon 82-83 appointment and duties of commissioners 83-84 refusal or neglect to serve 141 notice of meeting of 84-85 decision of commissioners, favorable 86-90 estimate of damages 85-91, 130 decision of commissioners, unfavorable 91-92 confirming, vacating and modifying decision 92-96 laying out highways through orchards, vineyards, build- ings, yards, gardens, etc 96-100 laying out highways through burying- ground 100 in two or more towns 106^107 determination, how carried out 107-109 filing and recording papers 107-109 costs of proceedings (see Costs). abandonment of {see Abandonment) 109-111 traction engines, etc., upon 142-143 I. IMPLEMENTS (see Eoad Machine; Stoxe Crusher): for highwa3S, purchase of 17-19 custodj' and care of 17-19 for highway labor 67-68 INDIAN LANDS: not vi-ithin Highway Law 2 provisions as to highways within 2 INHABITANTS: lists of, to be furnished by overseers 48 INJURIES: to highways, etc 26-27, 142 JNTEMPEEATE DEIVERS (see Carriages). Index. 315 li. liABOE SYSTEM: Page, of working- highways 57 XAMPS AND LIGHTING (see Electric Lights) : special act with reference to 3 abatement of tax for street lamps 74 LAYING OUT HIGHWAYS (see Highways). LAW OF THE EOAD: exists independently of statute 145 turn to the right when meeting 144-148 turn to the left when overtaking 144-148 turning at corners 144-148 LICENSES: m.oney from certain, paid to treasurer of commissioners of highways 4 for automobiles 153, 206c-206e for chafEeurs 20&i-306j LISTS (see Inhabitants; Assessment; Highway Labor; Non- Eesidents) . LOCAL BILL (see Private Bill). M. MACHINES (see Implements). MILE-STONES, ETC.: erection of, etc 16-17 penalties for injuring 16 MONEY SYSTEM OF TAXATION (see Tax): for working highways ^^ MONUMENTS: erection of, as highway boundaries 41-43, 176 Motor Vehicle Law 206a-3061 N. NAVIGATION LAW: rivers and streams as highways 3 NEGLIGENCE (see Action; Highways): producing defects in highways 27-37 lack of funds as a defense to action for 32-33 31C Index. NEGLIGENCE — Continued: Page. absence of barriers as 33-34 notice of defective condition 34-35 contributory negligence 35-36 presenting claim for injuries from 36 action by town against commissioner for 38 audit of damages for, without action 38, 39 town not liable for, of commissioners and overseers 8 NEW YORK AND ALBANY POST ROAD: act to preserve , 3 NON-RESIDENTS: list of lands of, by commissioners 48-49 appeal from assessment by 52 notice to. to work 67 NOTICE TO WORK (see Highway Labor). NOTICES — Of proceedings {see High ways; Private Roads). 0. OATH: of office of commissioners of highways 15, 183 of office of overseer 41 of commissioners for laj-ing- out, etc., highway 83, 103 to jurors on laying out private road , 127 commissioners of highways may administer 182 OBSTRUCTIONS AND ENCROACHMENTS: opening highways obstructed by snow 42-44 penalties for and removal of, generally 114-123 right of extra viam in case of 118 ORCHARD: highway through 96-100 ORDERS (see Bridges; Filing Papers; Highways; Private Roads). OVERSEER OF HIGHWAYS: appointment of 11, 13 notice of appointment of 11, 13 refusal of, to serve and penalty therefor 12, 183 inspecting and reporting condition of highways and bridges, 14 to repair and keep highways in order 40 Index. 317 OVERSEER OF HIGHWAYS — Continued: Page. to warn persons to work 40 to cause weeds to be cut 40, 71-73 and report expenses thereof 71-73 to collect fines and commutation money 40 to execute orders of commissioners 12, 40 remove stones from highways 40-41 to erect monuments as boundaries of highways (see Survey) 41 to open obstructed highways 42-44 penalties against, generally (see Pejstalties) 44-45 compensation of 45-46 to furnish list of inhabitants 48 to furnish list of un performed labor 70 aiid include same in annual return 73 penalty for failure 70-72 to make annual return 71-72 contents of same 71-72 may acquire gravel for highway purposes 202-203 PAPERS (see Filing Papeks). PENALTIES: report of sums received for 39 for refusal of overseer to serve 12 for placing stone in highway, gutter, etc 40-41 for failure to prosecute for same 41 for failure to open obstructed highway 42-44 against overseers, generally 44-45 collection of penalties against overseers 45 not satisfied by reassessment of labor 53 for failure to perform highway labor 69-70 for failure to furnish list of unperformed labor 70-71 recovery of, generally 151-152 for failure to cut weeds 72-7:i for placing weeds in highway 72-73 for trees in highways 113-114 for obstructions and encroachments 114-123 . for fast driving on bridge 139-140 for failure to observe law of the road 144-148 for employing intemperate drivers 1*8 for leaving horses untied in relation to automobiles 153, 2O6J-2061 for not posting ferry rates ~ 1^^ 318 Index. PIPES: Page, in highway 25-26 PLANK-ROADS (see Turnpikes): corporation maintaining, etc 3 acquisition of 3, 374, 178 POLES IN HIGHWAY {see Electric Lights; Telephones; Obstructions and Encroachments). PKISONEKS: highway labor by ^ 65 PRIVATE BILLS: in relation to highways forbidden 2-3 ^vhat are 3 PRIVATE ROADS: law unconstitutional 124, 125 application for 124 determination of necessity and assessment of dam- ages 124-12;-), 127, 129 application and notice delivered to applicant 125 service of application and notice 125-126 selecting jury 126 place of meeting 126 verdict of jury 127 recording papers 127-128 payment of damages 128 fees of officers 12* confirming, vacating and modifying decision 12S-120 costs of new hearing 129 by whom used ]2n-lo0 credit for la bor on 52 B. RAILROADS: rights and duties of, as to each other and as to highways, 3, 6, 15, 76,114 sign-boards and gates at crossings of 17 highways across 99, 187-188 REFUSAL: or neglect of cominissioners to serve 141 Index. 319 EEPAIRS: Page. of highways and bridges, generally 4-9, 14-15, 40, 131-140 commissioners, not towns, charged with 6 discretion as to application of funds 6 lack of funds as excuse 6, 32-33 may repair any portion 6 use of soil taken from 6-7 commissioners may not trespass to make 7 authority to repair bridges may include rebuilding 7, 21 but not change of location 7 may not throw water upon abutter 7, 8 extraordinary repairs 20-22 auditing expense of repairs 22 accounts for repairs 23-24 EEPOETS (see Commissionebs of Highways; Oveeseebs). of Commissioners of highways 39-40 of overseers 71-72 EIGHT — Turning to (see Law of the Eoad) . RIVEES AND STEEAMS: as highways 3 protection of highways and bridges from 13-14 EOAD MACHINE: purchase, care and custody of, etc 17-19 as defect in highway 18, 28 EOAD EOLLEE: purcha se of, etc 18, 19 as defect in highway 143 S. SAVING CLAUSE (see Highway Law). SEWEE PIPES: in highway ^^"^^ SIDE-PATHS: acts concerning SIDEWALKS: location and construction of 5o, 56 anticipation of tax for certificate of anticipation ^^ transfer of certificate ^^^"^ SNOW: preventing and removing obstructions by 13, 42-44, 60, 72, 118 320 Index. STATE AID — For highway construction, etc. (see Good Roads Law; County Stipekvision of Highways). Page. STEAM ENGINES (see Traction Engines; Automobiles). STONE: for crusher IS, 19 removal of, from hig-hwa y 40, 41 not to he deposited in or near highway 40-41. 152 STONE CEUSHEE (see Stone): purchase and expenses of 18, 19 custody of 19 STRAYS: upon highway 16 STREET LIGHTS (see Lamps and Lighting). SUBSTITUTES (see Highway Labor). SUPERVISORS (see County Supervision of Highways) : powers of, over highways and bridges 169-178 may change time of appointing overseers of highways 11-12 duties as to county roads 62-64, 156-161 powers of, as to weeds 72-73 levying tax for expenses of certain bridges 134, 138-139 powers under "Good Roads Law," and supplemental act., '.i, 1S'.I-2()1 SURVEY: of highways T'.)-S0, 176 T. TAX; TAXATION (see Assessment): for highways, paid to treasurer of commissioners of high- ways 3-4' additional 19-20 additional, for wire fencing 44, 204-205 abatement of (see Abatement). sidewalk anticipated 55-56 certificate of anticipation 56-57 levying for expenses of bridge 134 money sj'stem of 57-61 vote thereon 58 when change takes effect 58 raising money under 58-61 duty to file contracts under 60 cutting weeds under 60-61 Index. 321 TEAMS AND IMPLEMENTS (see Highway Labob). Page. TELEPHONE AND TELEGRAPH POLES (see Obstkuctions and Encroachments) : use of highway for 37, 116-1] 7 TENANT: may deduct tax 53 TIKES (see Abatement). TOLL-BKIDGE: repair of unsafe 24-25 TOWN (see Action; Negligence). TOWN BOARD (see Audit; Highways): consent to extraordinary repair 20-22 auditing expense thereof 22 consent to laying out highway on release 76 dividing town into commissioner districts 46 audit of damages for negligence 38-39 audit of damages and costs on laying out, etc., highway.... 101-102 TOWN LAW: relative to highways 179-186 TRACTION ENGINES: upon highways 142-143 upon bridges 142 TREASURER: of commissioners of highways 3, 4 undertaking of 3, 4 TURNPIKES: Corporations maintaining, etc 3 acquisition of " mile-stones and guide-posts upon 16, 17 commissioners' control over ^ V. UNDERTAKING: of treasurer of commissioners of highways 3, 4 of commissioners of highways 15 of owner of ferry USE: 1,1_113 highways by 21 322 Index. V. VACANCY (see Eefusai,) : Page. in ofBce of overseer 13 in office of commissioner 15, 183 VEHICLES (see Law of Egad). VILLAGES: highways in, generally 3 property in, exempt from tax 49, 60, 205-206 form separate highway district 3 may place water pipes in any highway of county 26 VINEYARDS: highways through 96-100 W. WAGON TIEES: rebate of tax for wide 74-75 regulation of 178 WARNING TO WOEK («ee Highway Labob). WATEE COMMISSIONEES: commissioners of highways are 26 WEEDS, ETC.: removal of, from highway 40-41, 60, 61, 73-74, 169 WATEEING TEOUGHS: abatement of tax for, etc 67 abatement of tax for, etc.. on turnpikes 57 Y. YAEDS: highways through 96-100 of railroads (see Eailroads) ^ 96-100