We concur with the General Term that the question as to the legality of the proceedings to open the road in controversy cannot be raised by the defendant upon the facts shown in this record. Proceedings were taken to open the road, and the owners of the land and all others interested had an opportunity of being heard. A jury drawn for that *Page 72 purpose appraised the damages to the owners of the land to be taken, and the amounts thus appraised were subsequently audited and allowed by the town auditors, assessed upon the property of the town, collected and paid to and received by the said owners, and the highway commissioner took possession of the land and paid out some money thereon and performed labor upon it for the purpose of making it fit and proper for public travel. Upon these facts we are clear that the defendant cannot now raise the question that such proceedings to take the land and lay out the highway were illegal.
After the submission of the motion for a mandamus to the Special Term, and before its decision thereon, there was sent to the judges, who held the term, what purported to be a copy of an order made by the commissioners discontinuing the road in question; the order bearing date some days after the submission of this motion for a mandamus. It does not appear that the relator had any knowledge of this order, and the judge at Special Term (as it appears from his opinion), passed over the question whether the order could be properly presented to or considered by him, and did so far take cognizance of it as to hold it furnished no answer to this proceeding and awarded the mandamus. The General Term (as also appears from its opinion), refused to take the order into consideration, although stating that very probably it would arrive at the same conclusion as did the judge at Special Term, if the question were presented. The relator has never had an opportunity of answering in a proper and formal manner, if any answer there be, the evidence as to this order of discontinuance, as to how or under what circumstances it was made, or as to the legality of the petitions or how or when they were made, nor has he been formally called upon to answer the questions of law which may arise by reason of this order.
We express no opinion upon the question whether such order would constitute a defense to the motion, for we think it is not properly before us. It is proper, however, that the defendant should have an opportunity to be heard upon its *Page 73 effect, and that the plaintiff should also be heard as to any fact which might explain or affect it, and as to the law in regard to it.
We shall, therefore, affirm the order, with costs, without prejudice to any application by the defendant to the Supreme Court for relief founded upon such order and the petition upon which it was based, due notice of such application being given to the relator.
All concur.
Ordered accordingly.