The court, erred in holding that the plaintiff must deny an encroachment on oath upon a highway, or that he is finally bound by the order of the commissioners. The statute does not make such order final and conclusive. (2 R. S. [5th ed.], 407, § 141.) If the order was regularly made and correctly recited an obstruction which in fact existed, the order would presumptively evidence those facts. But plaintiff would not be bound to admit the jurisdictional facts upon which that order depended; even if he had denied the obstruction, and the jury had found against him, would he have been estopped from this action? (Doughty v. Brill, 36 Barb., 488; affirmed in Court of Appeals, 3 Keyes, 612.) The plaintiff in this case attempted to prove that the old highway of 1778 was not the highway as described in the commissioners’ order of 1872. The order requiring the plaintiff to remove an obstruction was based upon this order of 1872. Under the statute permitting *141commissioners to ascertain and describe an imperfect record, they cannot add to tbe old road. Proof was given tending to sbow that the obstruction removed (a fence) was placed by plaintiff so as to widen the road, and not to diminish its width. The offer to prove, if it had been permitted, would have established that the old record did not include the place' where plaintiff had erected his fence. There would then have been proof that the commissioners’ order was made wholly without jurisdiction. (People v. Judges of Cortland Co., 24 Wend., 494.) It needs no authority to establish the principle that an order made where the officer had no jurisdiction is not conclusive.
Judgment reversed and new trial granted; costs to abide event.
Gilbert, J., concurred; DyiímaN, J., not sitting.Judgment and order denying new trial reversed, and new trial granted; costs to abide event.