In the Matter of the Application of J. Blackburn Miller, for Leave Laying Out a Highway in the Town of New Windsor, in the County of Orange, and for the Assessment of Damages Caused Thereby. The Town of New Windsor, Appellant; W. C. Anthony, Commissioner and Others, Respondents

In the Matter of the Application of J. Blackburn Miller, for Leave Laying Out a Highway in the Town of New Windsor, in the County of Orange, and for the Assessment of Damages Caused Thereby. The Town of New Windsor, Appellant; W. C. Anthony, Commissioner and Others, Respondents. Highway Law— the fees of the commissioners are not payable by the town when the proceeding to lay out a highway fails. Where a proceeding instituted by a private individual for the laying out- of a highway fails because an owner has not consented that the highway be laid out through her brickyard, and the highway commissioners of the town do not certify that the public interests would be promoted by the opening of the highway, although the commissioners appointed by the court report in favor of the highway, it is improper for the County Court to impose upon the town the payment of the fees of the commissioners. The section of the Highway Law which makes a town responsible for the fees of commissioners relates to a case where there is a valid assessment of damages, and has no application to a case where the proposed improvement fails. Semble, that the fees of the commissioners and the costs of the proceeding stand under the statute on the same footing. Appeal . by The -Town of New Windsor from, an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 3'lst day of' August, 1896, directing the Town of New Windsor to pay the fees of commissioners appointed by the court on the application to lay out and open the highway, and also from an order bearing date the 21st day of August, 1896, and entered in said clerk’s office modifying the said order. H. R. Lydecker, for the appellant. Headley & McChung, for the petitioner. Walter C. Anthony, commissioner, in person. W. F. Cassedy, for Sarah M. Carson. [MAJORITY — Cullen, J.:] Cullen, J.: The petitioner, Miller, made application to lay out a new highway. On his petition the County Court appointed commissioners to determine. whether the proposed highway was necessary, and to assess the damages by reason thereof. The commissioners reported-in favor of the highway and assessed the damages occasioned by laying out the same. The proposed highway, however, ran through the brickyard of one Sarah M. Carson. She did not consent to the laying out of the highway through her land, nor did the highway commissioner's of the town certify that the public interests would bé' promoted by the opening of the highway. After the commissioners appointed by the court had made their report, Carson and the town of New Windsor moved to vacate all the proceedings for laying out the highway, on account of the failure to obtain such consent or certificate. The application was granted and the court imposed on the petitioner, Miller, the costs of Mrs. Carson, and directed the town to pay the fees of the commissioners appointed to assess the damages. From' the order imposing upon it the payment of such fees, the town has taken this appeal. We entirely agree with the contention of the commissioners of' appraisal that they should be paid for their services, but we are of opinion that that expense should not be imposed on the town. The general plan and policy of the statute is plain. Any person assessable for highway labor in a town may make application to lay out such highway as-he desires. When application is made the applicant is required to give an undertaking, with sureties, that in case the commissioners determine against the highway he will pay the fees of the commissioners and costs of the proceeding, not exceeding-fifty dollars. (§ 83, Highway Law.) In case of assessment of damages by commissioners appointed by the court, the costs are directed; to be paid by the town. (§ 92, id.) It was plainly intended that in. case the proposed improvement should be carried into effect the costs- and expenses occasioned by it should be defrayed by the town, but. in case of a determination adverse to the proposed improvement the expense should be borne by the applicant. This is just,, as the. pro-r ceedings are instituted not by the town, but by the applicant at his own election. It is contended that the rule does.not apply to the present case because the commissioners appointed by the court did not report against the proposed highway, but the proceeding failed from the absence of the necessary consent of the owner or certificate, of the highway commissioners, and that such a’contingency-is- not expressly provided for in section 83, as rendering the applicant liable, for costs and expenses. It may be that this view is correct, but if this be so, there is a easics omissus in the statute. It is not proper for us to determine the question, as it is not directly raised on this appeal. It would seem, however, by the language of the section, that the fees of the commissioners and the costs .of the proceeding stand on the same footing, and that, if the applicant could be made liable under this section for the latter, he could also for the-former. The responsibility of the town for these fees is based on section 92 of the Highway Law. It provides that, in all cases of assessments of damage by commissioners appointed by the court, the. costs thereof shall be. paid by the town, except when damages . are reassessed. .Therecould be in this case no legal assessment, of damages, because there was no right to lay out the highway. We think the section refers to the case of a valid assessment of damages only, and this accords with our view of the general scope and purport of the statute, that the town should bear the expense where the petitioner succeeds in his application for the improvement; not in the case of proposed improvements which fail. The order appealed from should be reversed, without costs» All concurred. Order reversed, without costs.