This case comes before us upon a certiorari to the court of common pleas of the county of Kings,, returning their proceedings in relation to the opening a street in the village of Brooklyn.
The 5th section of the act of April 9, 1824, which relates to the village, gives power to the trustees, under certain circumstances, “to widen and alter all public roads, streets *382and highways already laid out in the said village, to such convenient breadth, not exceeding sixty feet, as the said trustees, or a major part of them, shall judge fit.” The act also gives power to lay out new streets, if the owners of the lands will consent to the same. “ And if in widening or altering any such road or street now in being, or if in laying out any public road or street hereafter, or in widening or altering the same, the said trustees shall take or require for such purpose the lands of any person or persons, they shall give notice thereof to the owners or proprietors of such lands,” &c. The statute proceeds to direct that the trustees may treat with the owners, and agree with them as to the satisfaction for the lands taken ; but if the owner will not treat, then any judge of the court of common pleas of the county of Kings is required, on the requisition of the trustees, to issue a venire returnable before the court of common pleas at the next term thereof, not less than fourteen days from the date thereof, to assess the owner’s damages, and at the same time to give notice of such assessment to such owner; which jury, having been sworn and viewed the premises if necessary, shall assess the damages ; and the payment or tender and refusal of the amount shall authorize the trustees to cause the land to be converted to the purposes of a street.
At the April term of the court of common pleas for Kings county, a venire was returned, issued by Judge Lefferts, first judge of said court, upon the requisition of the trustees of Brooklyn. Several objections were raised, which will be considered in the order in which they appear on the record.
1. The defendant’s counsel moved to set aside the panel of jurors attached to the jury process, on the ground that the panel was different from one previously made by the sheriff, a copy of which had been given to the defendant’s counsel.
The statute requires the sheriff to empannel and return a jury to appear before the said court of common pleas, at the then next term thereof, not less than fourteen days from the date of such precept, to inquire of and assess the damages and recompense due to the owner or owners of such land, and at the same time to summon the owner or owners of such *383land, his, her or their agent or legal representative, by notice to be left at his, her or their last most usual place of abode, to appear, &c. According to the statute, the sheriff must empannel and return the jury, not less than fourteen days from the date of such precept. The statute requires no particular time of empannelling the jury before the return of the process; the panel, therefore, was unobjectionable.
2. It was objected that the jurors came from the village of Brooklyn, and that they were summoned by a deputy sheriff. The deputy sheriff had power to act: generally when any power is given to the sheriff, as a public officer, he may act by deputy ; and though the jurors from Brooklyn might be impartial, still it would have been more discreet to have selected others than the inhabitants of the village, that they might be entirely unbiassed. I do not say, however, that this was good cause for setting aside the panel.
3. It was also objected that the proceedings of the trustees were irregular, and should have been inquired into, but the court thought otherwise. In this the court was right: they had no control over the proceedings of the trustees; they can only be reviewed in this court upon certiorari, precisely as we now review the assessment made by the common pleas. The court saw that the jury process had been issued by one of themselves, on the requisition of the trustees; and further than this the court could not look to the regularity of the proceedings; but they were bound to examine whether the jury had been legally brought before them.
4. It was objected the proceedings were not warranted by law, inasmuch as there was a house on the land proposed to be taken, and the statute only authorized the taking of lands. The act authorizes not only the laying out new streets, but the widening old ones; and it was known to the legislature that the old streets could not be widened without removing buildings. They probably intended to give the right to take the land, and also to remove from the land the buildings upon it. The case is not analogous, therefore, to the highway act, which contains certain restrictions limiting the powers of the commissioners, and prohibiting their laying roads through *384certain gardens- and orchards. These arc supposed to be protected from invasion, because they are appurtenant to the dwelling; and of course under that act the house itself can-n°t betaken. (Clark v. Phelps, 4 Cowen, 190.) The act relating to Brooklyn contains no restrictions as to lands, nor does it in terms authorize the taking buildings ; but it seems to me that a fair construction of the statute gives the right to take land, and to remove whatever is upon such land, otherwise no improvement could be made in widening streets which were built upon.
5. The defendant’s counsel moved for a postponement, on the ground of the absence of material witnesses. This was refused, not for the want of power, but because the court did not think proper, in the exercise of their discretion, to grant the motion. It is sometimes difficult to ascertain what is meant by discretion, but in putting off trials it is understood ' to mean legal, not arbitrary discretion; and the practice is pretty well settled, that a trial should be postponed in case of the absence of a material witness, without the fault of the party asking the postponement. The defendant had been guilty of no loches, and within the case of Hooker v. Rogers, (6 Cowen, 577,) enough was shewn to entitle the owner in this case to the postponement required. It is there said, the usual affidavit is enough on the first notice of trial, unless circumstances of suspicion appear, inducing a belief that the application is intended.merely for delay. It is true, this is a special proceeding, but the provisions concerning view necessarily imply a power to postpone the trial. It has also frequently been held, that the judges act as commissioners ; but they in some respects, at least, act as a court during the pendency of the proceedings, though, when they have once finally acted, they become functus officio, and cannot revise their own proceedings. I think a postponement should have been granted.
It seems to me, also, that where an assessment is to be made by a jury, the parties are to have the full benefit of this forum, as understood at common law, and of course, when it appears that a view was had, it should also appear that the *385The substance should be jury were attended by an officer preserved as well as the form.
On these grounds, I am of opinion that the proceedings of the court of common pleas should be set aside.