Opinion
Argued March 1, 1897
Decided March 9, 1897
Benjamin Stolz and George McGowan for appellant. F.B. Gill for respondents.
The writ was directed to the County Court of Onondaga county, to review an order made by that court affirming the report of commissioners to determine upon the necessity of laying out a highway in the town of Geddes, through the lands of the relator, in which they found it was necessary to open the highway and take the relator's land therefor.
The appellant claims that, notwithstanding the fact that section 89 of the Highway Law (Ch. 568, Laws 1890; amended, ch. 686, Laws 1892) declares that the determination of the County Court upon the report of the commissioners shall be final, it is entitled to a review under the writ of certiorari, by reason of certain alleged irregularities in the proceedings, which affected the power and jurisdiction of the County Court in the premises.
This proceeding does not appear to have been considered by the Appellate Division upon the merits, but the writ was dismissed for the reason that appellant's remedy, if any, was by appeal from the order of the County Court.
Section 2121 of the Code of Civil Procedure provides as follows: "A writ of certiorari cannot be issued, to review a determination, made, after this article takes effect, in a civil action or special proceeding, by a court of record, or a judge of a court of record."
Section 2122 reads: "Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, in either of the following cases: * * * 2. Where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer."
This court has very recently decided in the case of Matter of De Camp ( 151 N.Y. 557) that while section 89 of the Highway Law makes the decision of the County Court final as to the question of the necessity of the proposed highway and the compensation of the landowner, yet its decision may be reviewed on appeal as to questions affecting the power and jurisdiction of the County Court.
In the case at bar the appellant insists that the petition is defective; that the court had no power to appoint either set of commissioners; that this and other defects deprived the court of jurisdiction.
In view of the statutes and decision cited we are of the opinion that the appellant mistook its remedy in the premises, and the writ of certiorari and all the proceedings based thereon were properly dismissed.
The order should be affirmed, with costs.
All concur.
Order affirmed.