By the Court,
The judges decided correctly in ruling that the omission to 21 e the petition at the time of the making of the order laying out the road did not affect the regularity of the proceedings, the statute requiring it to be filed being merely directory.
As to the principal question, and upon which the order of the commissioners laying out the road was reversed : The village of Williamsburgh was incorporated by an act passed April 14th, 1827, Laws of 1827, p. 270, 275, by the 17th section of which the village is made a road district, and declared to be exempt from the- superintendance and power of the commissioners of highways of the town of Bushwick, and the trustees of the village are invested with the powers and duties of commissioners over said district, subject to the same restrictions and appeals. By the 47th section of the act regulating highways and bridges in the counties of Suffolk, Queens and Kings, passed February 23d, 1830, Laws of 1830, p. 51, it is declared that no highway shall be laid out through any land, unless in the opinion of the commissioners the public good requires it; nor without the consent of the owner or occupant thereof, unless-on the petition of twelve freeholders of the same town, verified by their oath or affirmation. This act specifies the powers and duties of commissioners, overseers, ' magistrates and individuals, in nearly the same manner as the general road act. The last section is as follows : “ The provisions of this act shall not extend to the villages of Brooklyn and Williamsburgh in the said county of Kings.” If this act does not apply to the village of Williamsburgh, then the village for the purposes of that act composes no part of the town of Bushwick; and such, I understand, is and must be the effect of the 109th section. For all other purposes, the village is still part of the town, and the inhabitants vote at town meeting, are assessed, and pay taxes as inhabitants of the town. It is very clear that the commissioners of highways have no right to lay out streets in the village, nor have
There were several other points passed upon by the judges, upon which their decision now is not very material; but as they have been discussed by counsel, it may be proper to notice them. By the 68th section, every appeal shall be in writing, shall briefly state the grounds upon which it is made, and whether it is brought to reverse entirely the determination of the commissioners or only a part, and if the latter, such part must be specified. The appeal in question might have been more explicit. It states that the order of the commissioners is illegal; it might have specified wherein, to wit, that the petitioners were freeholders in the village, but in no other part of the town.
The damages are a proper subject of consideration only so far as to inquire whether the benefit will equal the expense. This must be inquired into by the judges as well as by the commissioners, and this ground of appeal was all the paper contained to inform the judges that the appellants sought to reverse the whole determination of the commissioners. This •perhaps was enough, though it would have been well that the appeal should have pursued the directions of the act more particularly. The judges pass in review upon the acts of the commissioners, and are substituted in their place ; all the considerations which are proper for the one are also for the other tribunal.
Frost, the commissioner, was properly excluded. It is a general rule that a party to the record shall not be a witness unless to prove to the court some preliminary matter, as the service of notice, the loss of a paper, the death or unavoidable absence of a subscribing or material witness, in order to let in secondary testimony. In this case, I apprehend, Frost was interested in the costs. If the cause is decided against him,
' It is also objected that the freeholders were not legally sworn—that & justice of the peace has no power given him to administer an oath in such a case ; that the statutes provide, 2 R. S. 284, § 49, that whenever an oath is required by law, it may be administered with certain exceptions by certain officers, among whom justices are not mentioned. I confess I do not see how the justice acquires his authority, although there may be some section in the statutes which neither the counsel nor myself have found.
The judges received parol testimony as to the location of the freeholds of the petitioners. It is true that their title deeds or even their own testimony would have been higher evidence ; but it must be remembered that the judges were not inquiring into the title of the petitioners, but, admitting that they were freeholders, the question was, where was their freehold located 1 The testimony offered appears to me prima fade sufficient to throw the burden of proving the contrary upon the other side. It was conceded, however, in the course of the investigation, that the petitioners were freeholders in the village, and no where else in the town.
On the whole, I think the judges were correct on the point upon which they placed their decision, and it should be affirmed.
Judgment affirmed.