Opinion
September, 1905.
Eugene E. Howe, for the appellants.
M.S. Wilcox, for the respondents.
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 a 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.