through the lands of R. S. and T. W., who consent to the abandonment of such highway. Consent of Town Board to Lay Out, Alter or Discontinue a High way. The undersigned, the town board of the town of ..... in the county of hereby consent that the commissioners of highways of said town make an order laying out (or altering or discontinuing) the highway described in the application of L. M., pursuant to Section 80 of the Highway Law. In witness whereof, we have hereunto set our hands on this day of 19.... (Signed by Each Member of Town Board.) FORM NO. 55. Release of Damages by Owners of the Land. ....... ........ ........ Know all men by these presents, that I, R. S., of the town of county of N. Y., for and in consideration of the sum of (not exceeding $100), hereby consent that a highway be laid out and opened (or altered) across my premises in the town of County of N. Y., pursuant to the application of L. M., dated the ...... day of 19...., and release said town from all damages by reason of laying out and opening (or altering) such highway through my premises. ...... In witness whereof I have set my hand hereunto, on this (Form may be readily modified where highway is to be abandoned.) FORM NO. 56. Order Laying Out or Altering a Highway With the Consent of Town Board. ...... ..... on the ...... At a meeting of the commissioners of highways of the town of in the county of day of 19...., for the purpose of deliberating on the propriety of laying out (or altering) a highway in said town, and upon the written application of L. M., a person liable to be assessed for highway labor in said town, and the written consent of the town board of said town having been given as prescribed by law, and releases from damages having been executed by the owners of the land through which the proposed highway is to be opened, copies of which are hereto annexed, the consideration paid to any one claimant for such damages, not exceeding $100, and of all the claimants not exceeding $500; It is hereby ordered and determined that a highway shall be, and the same is hereby laid out in said town as follows: (Here insert survey bill.) And the line of survey shall be the center of the highway, which shall be rods in width. day of (Form may be readily modified where highway is to be abandoned.) The application, consent and order together with the written release from damages must be filed and recorded in the town clerk's office. The town clerk should note the time of recording these papers. The consideration for the release must not exceed the sum of one hundred dollars, and the total sum paid to all claimants must not exceed five hundred dollars. No such highway shall be laid out less than three rods in width. (H. L., § 90.) 881. Survey.-Whenever the commissioners of highways shall lay out any highway, either upon application to them or otherwise, they shall cause a survey thereof to be made, and shall incorporate the survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. Survey must be recorded. Although this section requires the survey to be incorporated in the order, it is sufficient if it is referred to in the order, attached to it. Van Bergen v. Bradley, 36 N. Y., 316. And where the order referred to the survey and both were recorded in the same book at the same time, it was held sufficient. McCarthy v. Whalen, 19 Hun. 503. But in any event the survey must be included in the record in some form in connection with the order, so that may be readily referred to for the purpose of locating the highway. Pratt v. People, 13 Hun. 664. it § 82. Application.-Any person or corporation assessable for highway labor, may make written application to the commissioners of highways of the town in which he or it shall reside, or is assessable, to alter or discontinue a highwav or to lay out a new highway. Who may make application.-It is not necessary that the person who makes the application should be a resident of the town, but merely that the person or corporation shall be assessable for highway labor in the town. Harrington v. People, 6 Barb. 607; New York, New Haven and H. R. R. Co. v. New Rochelle, 29 Misc. 195, 200. The application may be made by a tenant, assessable for highway labor. If the application is made by a person who is not assessable for high way labor the proceedings are not for that reason void. Marble v. Whitney, 28 N. Y., 297. A person liable to be assessed for highway labor in one town may institute proceedings to lay out a highway partly in his own town and partly in another town. People ex rel. Knapp v. Keck, 90 Hun. 499. Residents of a village within a town are not entitled to make the application. Commissioners v. Meserole, 10 Wend, 123. Persons exempt from poll tax for highway labor are not proper parties to make such application, unless they own or occupy property in the town where such highway is or is to be located which is assessed for highway labor. (For enumeration of persons exempt from poll tax, see p. 91.) Commissioners may act on own motion.—While a commissioner of highways as such may not make application to lay out a highway (People v. Supervisors, 82 Hun. 298), it is not necessary to the valid laying out of a highway that there should be a written application; the commissioner may act on his own motion. McCarthy v. Whalen, 19 Hun. 503, aff'd. 87 N. Y. 148; Gould v. Glass, 19 Barb, 179; People v. Supervisors of Richmond, 20 N. Y. 252. Form of application.-The application to lay out, alter or discontinue may be in the following forms, respectively: FORM NO. 57. Application to Lay Out a Highway. To the Commissioner of Highways of the Town of County of .....: in the ....., liable The undersigned, an inhabitant of said town of ........ to be assessed for highway labor therein, hereby applies to you to lay out a highway in said town, commencing (describe the proposed highway), which proposed highway will pass through the lands of R. S. and T. W. (who consent to the laying out of the highway, or as the case may be). Application to Alter a Highway. To the Commissioner of Highways of the Town of in the The undersigned, an inhabitant of said town of ..............................................., liable to be assessed for highway labor therein, hereby applies to you to alter the highway leading from to in said town as follows: .... (Insert particular description of the proposed alteration by courses and distances.) The proposed alteration passes through the lands of R. S. and T. W. (who consent to the proposed alteration, or as the case may be). Dated this .... day of ...... 19.... L. M. FORM NO. 59. Application to Discontinue a Highway. To the Commissioners of Highways of the Town of in the liable The undersigned, an inhabitant of said town of to be assessed for highway labor therein, hereby applies to you to discontinue the old highway beginning (insert description), on the ground that said highway has been abandoned. Dated this............day of.............. 19.... L. M. § 83. Applications for commissioners.-Whenever the land is not dedicated to the town for highway purposes, and not released as herein provided, the applicant shall, within thirty days after presenting the application to the commissioners of highways, and after at least five days' notice to said commissioners of the time and place of the application to the county judge or special county judge, in this section provided for, by verified petition showing the applicant's right to so present the same, and that such application has been in good faith presented, and if the judge require on such notice to such parties interested as he shall direct, apply to the county judge or special county judge, of the county where such highway shall be, for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out or altered, or to the uselessness of the highway proposed to be discontinued and to assess the damages by reason of the laying out, opening, altering or discontinuing such highway. Such application shall be accompanied by the written undertaking of the applicant executed by one or more sureties, approved by the judge, to the effect that if the commissioners appointed determine that the proposed highway or alteration is not necessary or that the highway proposed to be discontinued is not useless, the sureties will pay to the commissioners their compensation at the rate of four dollars for each day necessarily spent and all costs and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of fifty dollars. (Amended by L. 1894, chap. 334; L. 1897, chap. 344; L. 1904, chap. 353, in effect April 16, 1904.) Amendments to section.-The amendment of 1894 added the provision requiring an undertaking for the compensation of the commissioners and their expenses. The amendment of 1897 reduced such compensation from six dollars to four dollars per day. The amendment of 1904 authorizes the application to be made either to the county judge or special county judge, instead of the county court, as heretofore. Instituting proceedings.-This and the following sections are designed to point out the initiatory steps in all proceedings to lay out a new highway. Matter of Taylor and Allen, 8 App. Div. 395. The statute must be strictly complied with. People ex rel. Scrafford v. Stedman, 57 Hun. 280. Sufficiency of application.-The statute contemplates that an application shall first be made to the highway commissioner, and that within 30 days thereafter application shall be made to the county judge or special county judge for the appointment of commissioners. People ex rel Knapp v. Keck, 90 Hun. 497; People ex rel Smith v. Allen, 37 App. Div. 248. But it does not require that the application shall contain affirmative allegations that the land proposed to be taken has not been dedicated to the town for highway purposes, or has not been released by the owner for that purpose, or that it has been made within 30 days after its presentation to the commissioners of highways, and the failure of the applicant to allege such facts does not deprive the judge of jurisdiction to entertain the proceeding. Matter of Buell, 168 N. Y. 423. Form of application.-The application must be presented by the person or persons making the original application to the highway commissioners and within thirty days after such original application was so presented. The application must be in the form of a verified petition and should show: 1. That the petitioner is a person liable to be assessed for highway labor in the town where the application is made. 2. The previous application to the commissioners. 3. That the application has been presented in good faith. 4. That the highway commissioners have not laid out such highway. Such petition and verification may be in the following form: |