People ex rel. Burnett v. Van Brunt

90 N.Y.S. 845 | N.Y. App. Div. | 1904

Jenks, J.:

This is a certiorari to review the proceedings of the trustees of the village of Southampton in widening a highway. The denials and allegations of the return must be held true so far as they join issue with the material allegations of the petition. (People ex rel. Lester v. Eno, 176 N. Y. 513; People ex rel. Miller v. Wurster, 149 id. 549.) And in the latter case it is held that we cannot look behind the return to consider allegations of fact in the petition and the papers, unless the return admits them or contains an equivalent of an admission. The writ recites that the relators inform the court of several objections, which I consider seriatim.

First, it is said that the lands of the relator Burnett sought to be taken have been inclosed for ten years and are not a part of the highway, and that a certain other strip, also his property, has never been dedicated and is not a part of the highway. But it appears that the land named and described in the petition is that named and described in the order as land owned by Burnett, which must be acquired. If the relator’s hedge is on a strip of land which is no part of the street, then that strip is within or without the part designed for a taking. If it be within, it must be assumed that he will be compensated. If it be without the highway limits, and yet by the order he is to receive compensation therefor, why should he complain ? The defendants return “ that even if no testimony had been given on the hearing in behalf of the petitioners, it was clearly manifest to us from the mere inspection of the premises that the application of the petitioners should be granted.” The court will not review facts stated in the return “ where they are founded upon personal inspection and individual knowledge of the locality.” (People ex rel. Beardslee v. Dolge, 45 Hun, 310, 312; affd., 110 N. Y. 680.) Second, it is said that Edward Anthon, Emily H. Harrington, Henry A. Lewis, Harri M. Howell, Mary A. Herrick, Ellen N. Herrick, Anita Herrick and John Herrick were necessary parties, and did not receive due notice. But the return shows that the said Anthon, Harrington and Lewis appeared, consented to the widening and waived all damages. The objections filed during the proceeding and returned state that neither Sophia M. Johnson nor Augusta Stager is named in the petition. But the return shows that both Johnson and Stager appeared and waived all claims. Section 147 of the Village Law (Laws of 1897, chap. 414) provides in part: “ A person affected by the proposed improvement and upon whom notice has not been served may appear upon the hearing. A voluntary general appearance of such a person is equivalent to personal service of the notice upon him.” Such appearances must be deemed general. (2 Ency. of Pl. & Pr. 632.) As to the others, Howell and the Herricks, who are stated in the petition to be owners of the fee in the highway as recorded, the return denies such ownership. I doubt whether the language of denial is open to criticism as containing a negative pregnant, but in any event such denial is sufficient on appeal. (Stuber v. McEntee, 142 N. Y. 200, 206.) I cannot find anything in the record that in any way weakens or affects or nullifies this denial. Third. It is insisted that the board was without jurisdiction to make its order of May 11,1903, granting the petition. It is first contended that inasmuch as the board “ must determine the matter within twenty days from the date fixed for such hearing ” (Village Law, § 147), that a determination on May eleventh, when the hearing was fixed for April twenty-first, is too late. The Statutory Construction Law (Laws of 1892, chap. 677, § 27, as amd. by Laws of 1894, chap. 447) provides in part: “ A number of days specified as a period from a certain day within which, or after, or before which, an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made.” Therefore, the order was made within twenty days. The next contention is that the meeting of May eighth was adjourned sine die. This is denied by the return.

And finally it is said that there is a misnomer of the highway in that its true name is Toylsome lane and not Toylsome road. The return is that it is sometimes called one and sometimes the other, and that other than said road there is no highway in said town known as Toylsome lane. This return is adequate.

The order should be affirmed as to all parties, with costs against the relators.

All concurred.

Order affirmed, with costs against the relators in favor of the respondents represented upon the appeal.