The decision was right, upon the merits. The road was laid out between two highways. One of these was unrecorded; but the fact is established, by the proof and the finding, that for more than twenty years it had been used as a public highway, and it therefore became such by force of the statute. (1 R. S. 521, § 100.) If, however, the fact had been otherwise, the authority of the referees to lay out the road would have been equally clear. It was formerly supposed that, by the rules of the common law, a mere oul de sao could not be a highway, open, of right, to all. The contrary doctrine is now well settled in this State, as well as in England. A road maybe laid out or dedicated to the use of the public as a highway, though at one end it may have no outlet, and may abut upon private property, or encounter an impassable barrier. (People v. Kingman, 24 N. Y. 560; Wiggins v. Tallmadge, 11 Barb. 457; Bateman v. Bluck, 14 Eng. Law & Eq. 69.)
The proceedings anterior to the order of the commissioners being regular upon their face, the jurisdiction of the referees was limited to the consideration of the case upon the merits. They were right in rejecting the evidence offered for the purpose of impeaching the freeholder’s certificate. It was *38made by the persons and in the mode prescribed by statute; it had. performed its office, and the referees had no authority to vacate it. (Commissioners of Warwick v. The Judges of Orange, 13 Wend. 432; The People v. Wheeler, 21 N. Y. 84; The People v. Commissioners of East Hampton, 30 id. 72.)
The facts proposed to be proved were insufficient to annul the certificate, even if the inquiry had been one which the referees were at liberty to entertain. The offer was, in substance, to show that certain persons, who were neither parties nor relators, but who owned lands over which the road was «to pass, promised, if the highway was laid out, to claim no compensation for their lands, and to protect the town against cost; and that afterward they refused to reduce the promise to writing, and revoked their conditional consent to waive compensation. If the commissioners had acted upon their parol consent before it was withdrawn, their claims to compensation would have been barred. (The People v. Goodwin, 1 Seld. 568.) If such an engagement had been entered into in writing by the owners, it would not have vitiated the certificate. Hot being in writing, until it was acted on it was revocable; and its revocation furnishes no warrant for the assumption that the certificate of the freeholders was false.
The referees were right also in rejecting the evidence, offered for the purpose of falsifying the recital in the order appointing them, that they were not nominated by parties interested in the appeal. It was sufficient for them that the county judge had jurisdiction to make the order, and it was neither their duty nor their right to institute a collateral inquiry as to his good faith in the discharge of his official duty. (Bingham v. Disbrow, 37 Barb. 28; Commissioners of Warwick v. Judges of Orange, 13 Wend. 432; People v. Wheeler, 21 N. Y. 84.)
It is claimed that the proceedings should be reversed, on the ground that the appeal from the original order should have been to the County Court, instead of the county judge. Ho' such objection was taken before the referee, and if made *39it would have been unavailing. The appropriate remedy, in case of a mere formal defect, is by motion to dismiss the appeal. But there was no defect, even in-form. The appeal was properly made to the county judge. It was taken in the mode prescribed by the act of 1847, the provisions of which, in this respect, have never been repealed, though in another particular they have been modified by subsequent legislation. Under that act it was made the imperative duty of the county judge to appoint referees, and to commit this class of appeals to them for determination. (3 Edmonds’ Stat. at Large, 314, § 8.) By the Code, concurrent jurisdiction has since been extended to the Connty Court, but without • changing the statutory form of appeal from the order of the commissioners, or divesting the county judge of authority to diréct a reference. (Code, § 30, subd. 11.)
Other objections to the proceedings were urged by the appellants, but they are such as do not call for special consideration.
There was formerly some -diversity of opinion as to the authority of the courts to award costs on appeal to the prevailing party on a common law certiorari. We have held that these cases belong to the class of special proceedings embraced in the third section of the Code, and that such costs may be awarded in the appellate tribunal. (Code, §§ 3, 318; Laws of 1854, 593, § 3; People v. Wheeler, 21 N. Y. 86; People v. Stilwell, 19 id. 532; People v. Commissioners of Schodack, 27 How. 158; People v. Fake, 14 id. 527.)
The judgment should be affirmed, with costs of the appeal to this court.
All the judges concurring,
Judgment affirmed.