Buell v. . the Trustees of the Village of Lockport

Jewett, J.,

read an opinion, in which he concurred with the supreme court upon all the questions in the case, except the disposition of the offer of the defendants’ counsel upon the trial, to prove that “in the continuing, laying out and opening of the street, it included the site of a building, the expense of the removal of which would exceed one hundred dollars.” He was of opinion that the court erred in excluding this evidence, and that the fact proposed to be proved went distinctly to show that the trustees had no jurisdiction to lay out the street, and that their acts were consequently void: that the trustees of the village of Lockport exercise a limited jurisdiction in laying out streets, and although it may be presumed until the contrary appears, that in laying out a street they have proceeded legally, yet their acts may be impeached by showing that they exceeded their powers, and that the statute gives them no power to adjudicate upon the question whether there is any building upon the line of a proposed street, or to determine whether the expense of its removal exceeds one hundred dollars.

All the other judges were of opinion that the offer of the defendant’s counsel did not properly raise the ques tion as to the excess of power by the trustees, and were therefore concurred in the conclusion of judge Willard.

Judgment affirmed.