In the Matter of the Application of Alfred Wagstaff, Respondent, to Lay Out a Highway in the Westerly Part of the Town of Islip from the Road Known as Higbie's Lane to Sumpwam's Brook, and to Assess the Damages Therefor. Edwin Hawley, Appellant

In the Matter of the Application of Alfred Wagstaff, Respondent, to Lay Out a Highway in the Westerly Part of the Town of Islip from the Road Known as Higbie’s Lane to Sumpwam’s Brook, and to Assess the Damages Therefor. Edwin Hawley, Appellant. Second Department, December 30, 1908. Highways — procedure — map—description — termination of proposed road — appeal — matters not reviewable. Highway commissioners appointed under section 84 of the Highway Law to determine the necessity for a proposed highway and assess damages need not file a map of the highway with the certificate of their decision. That duty is put upon the commissioners of highways when they make and file the order laying out the highway. Nor are they required to incorporate the description of the highway in such certificate; such description is a necessary part of the application to the highway commissioners and the petition to the County Court for the appointment of commissioners to determine the necessity of the highway. Description of proposed highway examined, and held, not to be indefinite in regard to the location of the starting point. Such proposed highway need not terminate in another highway, but may end at the center of a creek dividing one town from another. An order confirming the decision and certificate of highway commissioners is not reviewable by the Appellate Division in respect to the necessity of the proposed highway or the amount of damages. Appeal bj Edwin Hawley from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 3d day of June, 1908, confirming the decision and certificate of commissioners appointed to determine upon the necessity of a proposed public highway and assess the damages by reason of the opening thereof. In the written application to the commissioners of highways to lay out the proposed highway it is described as follows: “ Commencing at a point in the westerly side of a highway known as Higbie’s Lane, the middle line of said proposed highway being about three hundred feet Southerly (measured along the Westerly side of Higbie’s Lane) from the land of the Long Island Railroad Company, on which the track of the Montauk Division is laid, and being eighty-five feet Southerly from the Southeast corner of land of Mrs. Brimley; and from said point of beginning running North 84 degrees and 46 minutes West two hundred and eighty-two and eight tenths feet; thence South 71 degrees and 47 minutes West seven hundred and sixty-five feet, thence South 59 degrees and 1 minute West eleven hundred and eight and four tenths feet to the middle of the brook and to the East end of a new street forming a continuation Westerly of said proposed highway to Cooper street in the village of Babylon.” The said application is made part of the petition to the county court for the appointment of commissioners to determine upon the necessity of such highway, and to assess the damages by reason of the laying out thereof, and the description is repeated in the certificate of the commissioners. John B. Stanchfield, for the appellant. William G. Nicoll, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The objection that the description of the proposed highway in the certificate of their decision by the commissioners appointed by the county court under section 84 of the Highway Law to determine upon the necessity for the proposed highway and assess the damages on the opening thereof is so indefinite as not to locate the starting point, and that they filed no map of such highway with their certificate, is unfounded. They are not required to file a map thereof; that requirement is put upon the commissioners of highways in making and filing their order laying out the highway, which comes at the end (§ 81). Nor are they required to incorporate a description thereof in their certificate. The application to the highway commissioners (§ 82) to lay out a highway must necessarily describe the proposed highway, and the petition to the county court for the appointment of commissioners to determine upon the necessity, etc., must also necessarily do the same in order that it may appear what proposed highway is before the court. In the present case the description is in the application to the highway commissioners, the petition, the notice of presentation thereof to the court, the order appointing the commissioners, and their certificate of decision. The starting point is fixed with precision, and not “ about ”, as is claimed. The words of the description are as follows: “ Commencing at a point in the westerly side of a highway known as Higbie’s Lane, the middle Une of said proposed highway being about three hundred feet Southerly (measured along the Westerly side of Higbie’s Lane) from the land of the Long Lsland Railroad Company on which the track of the Montauk Division of said rait/road is laid, and being eighty-five feet Southerly from the Southeast corner of land of Mrs. Brimley; and from said point of beginning running ”, etc. The words I have italicised are obviously surplusage and of no effect, and if they be disregarded it will be seen that the starting point is fixed with precision. The contention that the proposed highway is not authorized by law because it does not terminate in another highway, or is a cul de sac, is without support in law. It runs to the centre of a creek which divides the town from another town. Highways often terminate in open fields. It would be quite impossible to open highways gradually if every one had to terminate in an existing highway. The point that the commissioners acted on an erroneous principle in assessing the damages is unfounded. Ho such thing appears in the record. The order appealed from is not re viewable in respect of the necessity of the proposed highway or of the amount of damages (§ 89). The order should be affirmed. Jenks, Hooker, Rich and Miller, JJ., concurred. Final order of the County Court of Suffolk county affirmed, with costs.