[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 425 We think all of the questions raised on this review have been properly disposed of by the courts below, and that the only question requiring further consideration here is the failure on the part of the applicant to state in his petition to the County Court that the lands sought to be taken for the purpose of a highway had not been dedicated to the town for highway purposes or had not been released by the owner for that purpose.
Under the Highway Law the commissioners of highways are authorized, either with or without a written application therefor, to lay out a highway upon lands released or dedicated to such purpose. The statute also authorizes any person assessable for highway labor to make a written application to *Page 426 the commissioner of the town in which he shall reside or is assessable to alter, discontinue or to lay out a highway. Section 83 of the law then provides: "Whenever the land is not dedicated to the town for highway purposes, and not released as herein provided, the applicant shall, within thirty days after presenting the application to the commissioners of highways, by verified petition showing the applicant's right to so present the same, and that such application has been in good faith presented, apply to the county court of the county where such highway shall be, for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out * * * and to assess the damages." etc. (L. 1890, ch. 568.) It will be observed that the provisions of this statute specify what the petition shall contain. It must be verified and it must show the applicant's right to present the same. Such right is fixed by prior section 82 and that is, he must be assessable for highway labor in the town in which the road is asked to be laid out. The petition must further show that the application has been in good faith presented to the commissioners of highways. These conditions having been complied with he may apply to the County Court for the appointment of commissioners. It is true, these proceedings would be unnecessary in case the lands sought to be taken had been previously dedicated to highway purposes, but there is no provision of the statute requiring the petition to contain an allegation showing that such dedication had not been made as a condition precedent to the making of the application. The application must be made to the court within thirty days after the application has been made to the commissioners of highways, yet it is not required that the petition should contain an affirmative allegation to this effect. It has been held that the commissioners appointed by the County Court are not bound to follow the route described in the petition with precision, but that it may be varied if thereby they obtain a better place for the road. (People ex rel. Cecil v. Carman, 53 N.Y.S.R. 155.) This was just what was done by the commissioners in this case. If this be the law it is not *Page 427 apparent how a person asking for the laying out of a highway could, in advance, determine the precise lands that would be finally taken by the commissioners and ascertain whether they had been dedicated or released.
There is no claim in this case that the lands sought to be taken had ever been released or dedicated to highway purposes.
The order should be affirmed, with costs.
PARKER, Ch. J., BARTLETT, MARTIN and LANDON, JJ., concur; O'BRIEN and VANN, JJ., dissent.
Order affirmed.