People Ex Rel. Ottman v. Hynds
New York Court of Appeals
This is an appeal from the judgment of the general term of the supreme court in the third district, affirming a judgment in favor of the defendants on mandamus, rendered at the Schoharie circuit in November, 1858. In 1855, the relator sued out an alternative writ of mandamus, requiring the commissioners of highways of the town of Seward, Schoharie county, to open for public use a highway that he alleged had been previously duly laid out, or show cause to the contrary.
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This is an appeal from the judgment of the general term of the supreme court in the third district, affirming a judgment in favor of the defendants on mandamus, rendered at the Schoharie circuit in November, 1858. In 1855, the relator sued out an alternative writ of mandamus, requiring the commissioners of highways of the town of Seward, Schoharie county, to open for public use a highway that he alleged had been previously duly laid out, or show cause to the contrary. The defendants made a return to the writ, showing for cause against opening the said road: 1st. That the road was laid out by…
1Opinion of the CourtHogeboom, J.
The judgment should be affirmed.
I. There was not a certificate of twelve freeholders. Dunkle was not a freeholder. He had not the legal title to the farm. That was either in Hutton or Wieting. Dunkle could not convey. He had an equitable title which might perhaps be converted into a legal title. The statute, by freeholders, means such as have the legal title to real estate—such as are freeholders without a proceeding in court to make or declare them so.
II. If there was not a certificate of twelve freeholders, the subsequent proceedings would be entirely void. At all events the commissioners…
2Cases cited4 opinions
- People ex rel. Bailey v. Supervisors of GreeneNew York Supreme Court · 1851
- Fitch v. Commissioners of HighwaysNew York Supreme Court · 1839
- Stewart v. WallisNew York Supreme Court · 1858
- Tucker v. RankinNew York Supreme Court · 1853
3Cited by16 opinions
- Kunesh v. City of Great FallsMontana Supreme Court · 1957
- Matter of BakerNew York Court of Appeals · 1903
- People Ex Rel. Hubbard v. . HarrisNew York Court of Appeals · 1875
- State ex rel. McCune v. GoodwinWisconsin Supreme Court · 1869
- McMeekan v. Department of HealthNew York Supreme Court · 1935
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