(dissenting): The town highway in question has been designated for county aid under sections 320-a and 320-b of the Highway Law. Subsequent to such designation proceedings were instituted and regularly prosecuted to conclusion under the Highway Law, section 192 and following sections, as amended, in which it was determined that there was public necessity for altering the route of this highway for something less than three-quarters of a mile. The County Court has made a final order confirming the report of the commissioners and this appeal is from that order; it being claimed that, the highway having been so designated for county aid, the proceeding could not be maintained. Designating a town highway for county aid leaves it still a town highway; but the improvement of the highway is put in the hands of the board of supervisors, who may direct the county superintendent to supervise the preparation of the grade and the culvert work, and the improvement is to be made under the super*83vision of a competent person designated by the county superintendent by and with the advice and consent of the town board, and the compensation of such person shall be a town charge, or the board of supervisors may determine that such construction shall be under the direct personal supervision of the county superintendent or of some person designated by him. The direction of the work may also be under certain highway officials if the board of supervisors shall so decide. When the improvement is completed the highway shall be repaired and maintained by the town. Mr. Justice Hasbrouck cites Pilbeam v. Sisson (204 App. Div. 762) as a case which decides the. question in this case. In my view the facts are very different. That was a taxpayer’s action, brought to prevent illegal official acts and waste. There' was a controversy as to which of two substantially parallel highways in the town should be improved. We held, upon the opinion of Tutbjll, J., that it was for the board of supervisors to determine which of the highways should be improved with county and State aid, and that the town board had no authority to determine this question. Here the dispute is not which highway shall be improved, or whether a certain highway shall be improved, but whether the line of the highway which is to be improved may or may not in any wise, or to any extent, be altered for the purpose of improving the grade and bettering the highway, or for any proper purpose. The highway designated for county aid is in no wise interfered with by.the alteration so far as the county or the State may be interested. It certainly cannot be to the advantage of the State or the county that the. highway should go up and down the sides of a hill, when an equally, short route may be had on comparatively level ground; and the report of the commissioners, confirmed by the County Court, is a final determination that public necessity requires this alteration of this highway. (Matter of De Camp, 151 N. Y. 557.) I do not think it should be said that, because a slight change has been made in the line of the highway, the highway becomes a different highway; substantially it is the same; the termini of the highway are the same and its location is substantially the same, except for a short distance. Our statutes are in a strange condition if a crooked highway designated for county aid cannot be straightened or dangerous curves or grades eliminated by alterations, provided the public use would be benefited thereby. After a town highway has been designated for county aid no period is fixed within which the improvement must be made. Maps of highways designated for county aid have been adopted, the improvements of which will not be completed for years.
So far as I can find the statute provides but one way for altering *84a highway and that is by the proceeding followed in this case. If those sections cannot be invoked for the purpose of altering a town highway, after it is designated for county aid, then a highway so designated cannot be changed, no matter how great the necessity during the years passing between the designation and the making of the improvement. No money has been expended and no part of the improvement of this highway has been undertaken. It may be that, this highway being altered, the board of supervisors might refuse to make the improvement. A reason for such refusal might be found if the alteration would largely increase the expense of the improvement. Undoubtedly, after the improvement is completed and the maintenance of the highway passes to the town, it could then take proceedings for altering the route; but this would result in the loss of the improvement in so far as the route be changed.
I think the Legislature intended that, by the designation of a highway, the board of supervisors simply undertakes the improvement of the highway and has full direction and control of that improvement; but it cannot prohibit those who have a right under the statute so to act to apply for and procure, if the court shall so order, an alteration or change in the route of a highway designated.
Final order reversed on the law and proceedings vacated, with costs to the appellants.