The People, on the relation of Babcock and others, against The Commissioners of Highways of the Town of Cherry Valley, 1 Seld. Notes 103

Appeal from a judgment of the Supreme Court, ordering a peremptory mandamus against the defendants, directing them to lay out and open a road in the town of Cherry Valley.

The return to the alternative mandamus (which was demurred to) shows that the defendants denied an application to them to lay out a road; their determination was appealed from to the county judge, who appointed referees to hear the appeal, and the referees, after hearing the parties, made a report in which they ordered and adjudged, that the determination of the commissioners refusing to lay out the road should be, and the same was thereby reversed.

The judgment of the Supreme Court, ordering a peremptory mandamus, was reversed; this court holding that it was the duty of the referees to lay out the road, and that the commissioners could not be required to lay it out under the decision merely reversing the former determination. (S. C., 8 N. Y. 476.)