The People, ex rel. Palmer & Tompkins, against Vail, Tompkins and Allen, Commissioners of Highways of the town of Newcastle, in the county of Westchester

The People, ex rel. Palmer & Tompkins, against Vail, Tompkins and Allen, Commissioners of Highways of the town of Newcastle, in the county of Westchester. m]^®re c°m~ laid out a road ™tion° freeholders, t(¡lt meshed proceedings, and a mandamus, directed *°ss*®lr c™°~ manding them mistake! t!le plication for a yule requiring the defendants to furnish the original application, and that the mandamus be amended thereby, it appeared that the paper sought for had remained in the hands of H, a former commissioner and was beyond the control of the defendants : Motion, therefore, denied as to the defendants ; But a rule was made upon H, that he ñle the paper with the clerk of the town, &q, or shew cause why he should not do so,. Several years ago, the Commissioners of Highways of the above town had laid out a road, on the application of twelve freeholders, pursuant to the 16th section of the act to regulate highways, (2 R. L. 275,) hut had omitted to record it in the town clerk’s office, as required by the 1st section of the act, (id. 270) nor had the road been opened. An alt ternahve mandamus, returnable at the last May term, having issued, directed to the defendants, commanding them to proceed and open a road (describing it) they returned, that no such road, as the one described in the writ, had been laid out. The original application to lay out the road having been lost, the affidavits for the mandamus had been drawn up from recollection; and affidavits were now produced, (copies whereof had been served on the defendants, with notice of Present motion) of information and belief, that the defendants, or one of them, had the application in their possession, or under their control; and that Vail, one of the defendants, had admitted this. The affidavits farther went to shew that, probably, the mandamus had misdescribed the road, in consequence of the relator’s not having had theusp of the proper papers when he commenced his proceedings. The defendants made oath, that the application of the twelve freeholders was in the hands of Nathaniel Hyatt, Esquire, of Newcastle, and beyond their control; that Hyatt had been a commissioner in 1817. They admitted that a road had been laid out in pursuance of it, and that it was probably the same to which the mandamus had intended to refer. S. A. Foot, moved for a rule, requiring the defendants to. deliver the original application to one of the relators ; and that the mandamus be so amended as to correspond with the description therein. Henry, contra, said, the amendment moved for would change the whole ground; and if granted at all, it should be, on payment of costs. Foot, in reply. This is the first time we have heard that the paper was in Hyattfs hands. As fair and correct offi«. cers, the commissioners should have filed their proceedings. Their omission to do this has misled us, and wp ought pot to be charged with costs. [MAJORITY — Curia.] Curia. The defendants make affidavit, that the paper is in HyatPs hands, and beyond their control. We, therefore, deny the motion, as to them, without costs $ but we direct that Hyatt file the application with the town clerk of Newcastle, or shew c.ause at the next term why he should.not do bo. Rule accordingly.