close the same and have the exclusive use thereof, and the benefits resulting therefrom may be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the discontinued highway. See notes to preceding section. § 88. Decision of commissioners denying application.—If a majority of the commissioners appointed by county court shall determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless they shall make duplicate certificates to that effect. The costs and expenses necessarily incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision and of the amount of such costs and expenses by the county court, such costs and expenses not exceeding fifty dollars shall be payable by the applicants. (Amended by L. 1894, chap. 334.) Amendment of section.-The amendment of 1894 added the last sentence. Certificate; form.-The commissioners must make duplicate certificates of their decision, one of which must be filed in the town clerk's office, and the other with the minutes and evidence taken by them in the county clerk's office. Such certificate may be in the following form: ...... FORM NO. 69. day of ..... ......... ........ Certificate of Decision of Commissioners Denying Application. The undersigned, by an order of the county court of county, dated the 19...., on the application of L. M., having been appointed commissioners to certify as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of ... in said county, beginning (describe highway as in the application) which proposed highway (or highway) crosses the lands of (name the persons) and to assess the damages to be caused thereby; now, therefore, we, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at in said town on the ... day of 19...., pursuant to such notice, and having taken the constitutional oath of office, and on proof of the service and posting of the notices by the applicant, pursuant to section 85 of the highway law, having viewed the proposed highway (or alteration or highway proposed to be discontinued) and the lands through which it is proposed to be laid out and ...... opened (altered or discontinued) and having heard all the allegations of the commissioners of highways and the parties interested therein, and the evidence of all the witnesses produced, do thereupon certify, that in our opinion such highhway, or alteration or discontinuance, is unnecessary and improper and should not be laid out (or should not be made, or such highway should not be discontinued). Dated this ...... day of 19.... S. S., G. G., J. J., Commissioners. Costs and expenses.-The liability of an unsuccessful applicant cannot exceed $50, and where an applicant has paid that amount as costs to the adverse party, the commissioners cannot recover their per diem fees of him. Patton v. Miller, 28 App. Div. 517; 51 N. Y. Supp. 202. An undertaking must be given by the applicant to secure his liability for such costs and expenses. 83, ante. § 89. Motion to confirm, vacate or modify.-Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office, any person interested in the proceeding may apply to the court if in session or to the county judge or special county judge, appointing the commissioners for an order confirming, vacating or modifying their decision, and such court or judge may confirm, vacate or modify such decision. If the decision be vacated, the court or judge may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court or judge shall be final, excepting that a new hearing may be ordered as herein provided, and excepting that any such decision may be reviewed on appeal upon questions affecting jurisdiction, and rulings and exceptions made and taken upon the hearing before the commissioners. If the final decision be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. (Amended by L. 1895, chap. 716; L. 1899, chap. 703 and L. 1904, chap. 353, in effect April 16, 1904). Amendments of section.-The amendment of 1904 merely amended the section to conform to the amendment made to § 83 allowing the application to be made to the county judge or special county judge instead of the county court. Who may make motion.-A resident taxpayer liable to assessment in the town for highway labor is a "person interested in the proceeding" within the meaning of this section, and may make the motion to confirm, vacate or modify the decision of the commissioners. Matter of Coe, 19 Misc. 549, 550; 44 N. Y. Supp. 910; People ex rel. Ridgway v. Cortelyou, 36 Barb. 164; People ex rel. Banner v. Temple, 27 Hun. 128. When motion to be made.-The purpose of this section was to allow interested parties who desired to apply to the court for an order vacating or modifying the decision of the commissioners the period of thirty days within which to institute the ap plication or motion. It does not require the application or motion to be actually heard within that time. Matter of Glenside Woolen Mills, 92 Hun. 188; 36 N. Y. Supp. 593. Form of notice of motion to confirm decision. The notice of motion may be in the following form: In the Matter of the Application of L. M. to Lay Out (Alter or Discontinue) a Highway in the Town of and the Assessment of Damages Therefor. To N. M. and W. W.: Take notice that an application will be made to this court at a term thereof, to be held at the ........, on the day of in the 19.... for ...... of an order confirming the decision of the commissioners in the above entitled matter, which decision is dated the ...... day of ... 19...., and for such other and further relie? as to the court may seem proper; that said application will be made upon said decision and upon the affidavits and papers, with copies of which you are herewith served. Dated this ..... day of 19.... ....... L. M. Powers of court or judge.-The provision of the constitution, Art. I., § 7, requiring that compensation for property taken for a public use shall be ascertained by a jury, or by three commissioners appointed by a court of record, precludes the court or judge from modifying the decision of the commissioners as to the amount of damages awarded. People ex rel. Hanford v. Thayer, 88 Hun. 137, 140; 34 N. Y. Supp. 592. Nor can the court or judge modify the decision so as to change the width of the highway laid out by the commissioners. Matter of Feeney 20 Misc. 272, 274. The court or judge may appoint successive commissioners until satisfied that the statute has been complied with. Schneider v. Rochester, 90 Hun. 171. The county court cannot, however, arbitrarily set aside an award made by commissioners, unless some error of law is plainly manifest. The commissioners in assessing damages are to be guided by their own judgment, as they view the premises and can better estimate the amount of damages sustained. For the court to arbitrarily set aside their award would be to usurp the functions conferred upon them by the statute. Matter of Carpenter, 11 Misc. 69; 32 N. Y. Supp. 826; Matter of Feeney, 20 Misc. 272; 45 N. Y. Supp. 830. Form of order confirming decision.-If the county court confirm the decision of the commissioners, the order may be made in the following form: In the Matter of the Application of L. M. to Lay Out (Alter or Discontinue) a Highway in the Town of and the Assessment of Damages Therefor. .... On reading and filing the decision of the commissioners, S. S., G. G. and J. J., in the above entitled matter, dated the ...... day of 19...., by which it appears (state substance of decision), with proof of due service upon N. N. and W. W. of notice of this application and (state other papers), and on motion of A. D., counsel for L. M., after hearing B. B., counsel for N. N. and W. W., opposed, and on reading (name the papers), it is hereby ordered that the said decision be and the same is hereby confirmed. E. E., County Judge. Form of notice of motion to vacate or modify decision.-If the application be to vacate or modify the decision of the commissioners appointed by the court, the following notice should be served on the adverse parties at least eight days before motion is made: FORM NO. 72. Notice of Motion to Vacate or Modify Decision of Commissioners. County. COUNTY COURT-.. In the Matter of the Application of L. M. to Lay Out (Alter or Discontinue) a Highway in the Town of and the Assessment of damages therefor. To N. M. and W. W.: Take notice that an application will be made to this court at a term thereof to be held at the of on the ...... day of ..... ........ ...... ........ in the 19..., for an order vacating (modifying or correcting, in the following particulars stating them) the decision of the commissioners in the above entitled matter, which decision is dated the ..... day of 19..., with costs on this motion, and such further relief as the court may deem proper. That such application will be made upon said decision and the affidavits and papers, with copies of which you are herewith served. .... ...... Form of order vacating or modifying decision of commissioners. If the court vacate or modify the order of such commissioners the following order should be made by the court: FORM NO. 73. Order Vacating or Modifying Decision of Commissioners. At a term of the of ...... Present-Hon. E. E., ..... County Court, held at the ........ in the 19.... In the Matter of the Application of L. M., to Lay Out (Alter or Discontinue) a Highway in the Town of of Damages therefor. ........ and the Assessment .......... On reading and filing the decision of the commissioners S. S., G. G. and J. J., in the above entitled matter, dated the ...... day of 19...., by which it appears (state the substance of decision), with proof of due service upon N. N. and W. W. of notice of this application and (state other papers), and on motion of A. D., counsel for L. M., after hearing B. B., counsel for N. W. and W. W. opposed, and on reading (name the papers), it is hereby ordered that the said decision be and the same is hereby vacated (or modified or corrected as follows: State how; or that a new hearing be had before the same or other commissioners to be named herein), with $...... costs of this motion to against ........ E. E., County Judge. If the decision be vacated, the court may order another hearing of the matter before the same or other commissioners. § 89. Costs on motion.-Costs of a motion to confirm, vacate or modify the report of the commissioners may be allowed in the discretion of the court or judge, not exceeding fifty dollars. § 152, post. Right to Appeal from order.-The provision of § 89 that the decision of the court or judge "shall be final" is to make the decision conclusive upon the questions of the necessity of the proposed highway and the compensation of the land owner, subject however to the limitation that the court has jurisdiction. The decision is therefore appealable only on questions of the power and jurisdiction of the court or judge. Matter of De Camp, 151 N. Y. 557; People ex rel. D., L. & W. R. R. Co. v. |