People ex rel. Lasher v. McNeil

P. Potter, J. We think the proceedings of the referees, in this case, must be affirmed. We regard the case to be an alteration of a road within the decision in Garretson v. Clark, Hill & Denio, 163. In such a case no jury was necessary, so that all objections made to the composition of the jury are unavailing. The summoning the jury was an act of supererogation, and does not vitiate, even though the commissioners proceeded upon the erroneous theory of believing it necessary. The six offers of proof made by the appellant to the referees, even if they contained meritorious matter to have in the case, cannot here be regarded as legal error, upon the authority of Commissioners of Warwick v. Judges of Orange, 13 Wend. 432, and People v. Van Alstyne, 3 Keyes, 37. The other objections made to the proceedings do not seem sufficient to reverse them. We think they must be affirmed. Miller, P. J., and Parker, J., concurred. Proceedings affirmed.