In the Matter of the Application of Jesse M. Wood and Others, Respondents, to Alter a Highway in the Town of Gilboa, by Laying Out a New Part, and Discontinuing a Part of the Old Highway and the Assessment of Damages Therefor; Jesse M. Cornell and the Town of Gilboa, Appellants

In the Matter of the Application of Jesse M. Wood and Others, Respondents, to Alter a Highway in the Town of Gilboa, by Laying Out a New Part, and Discontinuing a Part of the Old Highway and the Assessment of Damages Therefor. Jesse M. Cornell and the Town of Gilboa, Appellants. Proceedings for a change of highway — adjournment of a term of the County Court to the clumbers of the county judge, construed—effect of a subsequent adjournment to a regular term of the court—waiver of notice. An order made at a regular term of the County Court of Schoharie county, held in the village of Schoharie, adjourning the term to the chambers of the county judge, must be interpreted to mean the chambers of the county judge, at the courthouse in the village of Schoharie, which chambers are specifically provided by the board of supervisors of the county. While such adjournment is in force a motion for the appointment of commissioners, pursuant to sections 83 and 84 of the Highway Law cannot be made before the County Court at the county judge's chambers in Cobleskill, the village in which he resides, as the court has no existence at such village. If, however, the county judge thereafter at Cobleskill assumes to adjourn the application to his chambers at the village of Schoharie and, bn such adjourned day, at a duly constituted term of court held in the village of Schoharie, upon the appearance of the attorneys for the applicant and for the highway commissioner, and upon proof satisfactory - to the county judge of compliance , with his direction concerning the service of notice upon the mortgagees of the land affected by the proceeding^ an Order is made appointing the commissioners, such order is valid, as the highway commissioner, who was the only person entitled as a matter of right to notice of the application, had power to waive Such notice and to appear without notice. Appeal by Jesse M. Cornell and another from an order of' the County Court of Schoharie county, entered in the office of the clerk of the county of Schoharie on the 14th day of February, 1905, denying the appellants’ motion to vacate and set aside art order "granted on the 16th day of May, 1904, appointing three commissioners to assess damages in the above-entitled proceeding, and an order granted on the 3d day of September, 1904," confirming the decision of the said commissioners. On April 25, 1904, Jesse M. Wood and others, persons liable to be assessed for highway labor in the town of Gilboa, made an application to the highway commissioner of said town for the alteration of a certain highway in that town. Within thirty days after that application, and upon April thirtieth, upon five days’ notice to the highway commissioner of the town, they made a motion before the County Court at Cobleskill, at the chambers of the county judge at Cobleskill, N. Y., for the appointment of commissioners pursuant to section 83 of the Highway Law (Laws of 1890,. chap. 568, as amd. by Laws of 1904, chap. 353). That application was also made upon notice to the landowners whose land was to be taken in the said alteration. It appeared to the county judge that the land was mortgaged, and he directed that the proceeding be adjourned to May sixteenth, at his chambers at Schoharie, and that notice of the application be given to the mortgagees for that time. Notice was thereupon given to the mortgagees that the application would be made at one o’clock at the chambers of the county judge at Schoharie. Upon the sixteenth day of May, the day to which the proceeding was adjourned, at Schoharie, upon the appearance of the attorney for the applicants and upon the appearance of one Nichols, the attorney for the highway commissioner only, an order was made for the appointment of the commissioners under section 84 of the Highway Law (as amd. by Laws of 1904, chap. 353). Thereafter the commissioners met, notice of their hearing was duly given, their determination duly made, and upon the third day of September, at a County Court held in Cobleskill, an order was made confirming the report of the commissioners. That order was made upon notice to the landowners, to the mortgagees and to the highway commissioner, and upon the consent of the said Nichols, who had appeared in the proceeding for the commissioner and for the landowners and for Harriet Danforth, one of the mortgagees. It appears that the regular terms of the County Court were appointed to be . held at-the'courthouse at Schoharie, which is the county seat. The county judge resided at Cobleskill in said county. At the February term of - the County Court an order was .entered in the minutes ■ that the court be adjourned to the chambers of the county judge. No order was made adjourning the term claimed, to have been held at Cobleskill upon April thirtieth to Schoharie upon May sixteenth. The town and Jesse M. Cornell, one of the landowners, thereafter made a motion to the County Court to vacate all proceedings-on the ground of the lack of jurisdiction, which motion was denied, and from the order denying that motion this appeal is taken. Eugene E. Howe, for the appellants. M. S. Wilcox, for the respondents. [MAJORITY — Smith, J. :] Smith, J. : The order of the County Court, made in- February, 1904, adjourning the court to chambers, can only be interpreted as an order adjourning the court to the chambers of the county judge at the courthouse in Schoharie, which chambers were specifically provided by the board .of supervisors.. Upon April thirtieth, therefore, at Cobleskill, there was no court before which the application could be made for the appointment of commissioners, and the proceedings there taken were void. The order operating, however, as an adjournment of the court to the chambers at Schoharie, that adjourned term was in full force, at least until the actual convening of the regularly appointed term of court upon May sixteenth at the Schoharie courthouse. Upon May sixteenth, then, at a term of court, upon the appearance of the attorneys for the applicant and of the attorney for the highway commissioner, without objection as to^ the notice with which the highway commissioner had been served, an order was made for the appointment of commissioners pursuant to sections 83 and 84 of the Highway Law. Notice of five days to the highway commissioner might well have been waived by the highway commissioner, who might have appeared even without notice of the application. The notice required .to be given to the mortgagees was returnable upon May sixteenth at the chambers of the county judge. Some question is made that the- notice to the mortgagees was returnable at one o’clock, while the order was made before noon upon that day. The record does not show when the order was made except as it appears in the opinion of the county judge, which is no part of the record, for the purpose of establishing any fact which may be considered upon the appeal. It will be presumed, therefore, that the order was only made by the county judge after compliance satisfactory to himself with his requirement as to the notice to be given to the mortgagees. The Highway Law requires notice of the application for the appointment of commissioners only to be served upon the highway commissioner “ and, if the judge require, on such notice to. such parties interested as he shall direct.” Due notice was given of the meeting of the commissioners and of the hearing before them. Upon such hearing all parties were represented, the town, landowners and the highway commissioner, and upon the application for the confirmation of the report of the commissioners Mr. Nichols, who represented the landowners and the highway commissioner, duly consented to the confirmation thereof. We are of the opinion that the order of May sixteenth was a valid order made by á court with competent jurisdiction, and as no challenge is made of the regularity of the proceedings thereafter, we think the County Court was right in refusing to vacate the proceedings. All concurred ; Chase, J., in result. Order affirmed, with ten dollars costs and disbursements.