In re Oakley Avenue 32 N.Y.S. 1146

DYKMAN, J.

It is now provided by statute that no highway shall be laid out through any building without the consent of the owner thereof, unless so ordered by the county court of the county in which the proposed highway is situated, and not even then until the general term of the supreme court shall confirm the order of the county court. Laws 1890, c. 568, § 90. This is an application for the confirma*1147tion of such an order. The proceeding was instituted to lay out and open a highway in the town of Jamaica, from Liberty Avenue to University Place, to be called “Oakley Avenue”; and, because it passed through buildings, it became necessary to apply to the county court, under the statute to which reference has been made. The necessity of this new road has been certified by the highway commissioners of the town, the county court commissioners, and the county court of Queens county, and this application for the order of the general term is not opposed by the owner of any building through which the highway is proposed to be opened. The motion is opposed by persons who own two parcels of uncultivated and unimproved land through which it is proposed to run the new road. While it is quite doubtful whether persons so situated can be heard in opposition to this application, we have yet thought it advisable to hear counsel on their behalf, and make an examination of the case. In relation to the opposition of Shattuck, it is to be said that he has laid out a street upon his land, and sold lots on both sides thereof upon which houses have been erected. While such action does not constitute a dedication of the land for a street, it does preclude him from closing the street without the consent of the persons who own such lots thereon. The objections of the Napiers seem to be destitute of merit also. The order of the county court should therefore be confirmed.