Matter of Eightieth-street.

MATTER OF EIGHTIETH STREET.

Supreme Court, First District; General Term, March, 1864. CERTIORARI. .*—ASSESSMENT.-FRAUD AND LEGAL IRREGULARITY.

The allowance or refusal of a writ of certiorari to review the proceedings of local public authorities in laying assessments and awarding damages, rests in the sound discretion of the court.

In such cases, the writ should be refused, to avoid public inconvenience, where the relator has other adequate remedy by legal proceedings. †

* IN THE PEOPLE on rel. Cook a. THE BOARD OF POLICE (Supreme Court, First District; General Term, February, 1864), it was Held, that under the Laws of 1840, 1844, and 1854, costs are now properly allowed on a common-law certiorari.

Motion to resettle order allowing costs on certiorari.

This was a certiorari, issued on the relation of Stephen L. Cook, directed to the Board of Police of the Metropolitan Police District, to review the conviction of the relator of charges of misconduct as a policeman. Judgment was rendered in favor of the relator, with costs. The decision is reported 16 Ante, 473. The respondents moved to resettle the judgment in respect to the award of costs.

Aaron J. Vanderpoel, for the motion, cited Baldwin a. Wheaton, 12 Wend., 262; People on rel. Harvey a. Heath, 20 How. Pr., 804; Caldwell's Case, 13 Abbotts' Pr, 405; S. C., sub nom. People a. Kelly, 35 Barb., 444.

William Henry Arnoux, opposed, cited Laws of 1840, 327, ch. 386; Laws of 1844, 402, ch. 273; Laws of 1854, 592, ch. 270.

BY THE COURT.-BARNARD, J.-At common-law, costs were not allowed upon a certiorari. (People a. Duell, 6 Abbotts' Pr., 285; S. C., 16 How. Pr., 43; People a. Heath, 20 lb., 304; People a. Kelly, 35 Barb., 444; S. C., sub nom. Caldwell's Case, 13 Abbotts' Pr., 405). In 20 How. Pr., the court say, “None is given by any statute to which our attention has been called, in a case like the present. The statutes referred to were the laws of 1854, cited above, and the Code, section 318. It is the duty of counsel to inform the court of the law, and in that case the counsel was properly punished for his lack of diligence in a matter of such personal interest as the law relating to costs. In the case under consideration, the laws of 1840 and 1844 have been brought to our notice, and they clearly and distinctly allow costs on every certiorari. The decision in Wendell (Baldwin a. Wheaton, 12 Wend., 262) is inapplicable, because made prior to the passage of those acts. The other decisions must be disregarded, because it appears that the attention of the court had not been directed to the statutes cited above. (Ram on Legal Judgments, 121.)

Motion denied.

This rule is further illustrated in THE MATTER OF TOMPKINS SQUARE (Supreme Court, Second District; Special Term, August, 1858), where it was Held,-1. That a

Matter of Eightieth-street.

The act empowering a justice of the Supreme Court, on petition, to set aside assessments in New York for fraud or legal irregularities in the proceedings relative thereto (Laws of 1858, 574, ch. 338), is a remedial statute, and should be liberally construed.

certiorari to review an ordinance directing a local improvement, must be applied for immediately: it should be refused, if the applicants have suffered such delay that the assessment has been made and partly collected and paid over. It was further Held,—2. That a remonstrance against proceedings in assessments for a local improvement will not be regarded, if signatures necessary to make out the majority are not made by the parties whose names are used and are not duly authenticated. 3. The common council of a municipal corporation may act upon the petition and the remonstrance in a street case, presented to their predecessors in the preceding year.

In this case, application was made to the court for a certiorari to remove the proceedings of the Common Council in the matter of opening Tompkins Square, in Brooklyn, to the Supreme Court for review; the relators claiming that the proceedings were invalid, on the ground, among others, that a majority of those interested remonstrated against the improvement. Upon the application, the court referred it to L. Birdseye, Esq., to take proof of the question of fact, as to whether a majority did remonstrate against the proposed opening. The referee proceeded to take testimony, and after a hearing, reported that at the time mentioned in the notice of the Common Council for the filing of remonstrances, there were 511 owners within the district of assessment, and that of those, 290 had remonstrated against the measure. Other facts appear in the opinion.

On the coming in of the report, the application was denied, the following reasons being assigned by the court-STRONG, J., for the decision:

1. The Common Council could return only the evidence laid before that body and its committees. There was not sufficient evidence that the remonstrance had been actually signed by a majority of the landowners in the district. There were suspicious circumstances in reference to several of the signatures, which authorized a requisition for further proof. If the direct decision of the Common Council upon this question of fact could be reviewed upon a common-law certiorari (which is at least doubtful), there is not enough in the papers to authorize this court to reverse it. If the report of the referee can be taken into consideration upon this question, it appears from that, that but 254 out of 511 names were signed by the parties themselves, or by any of them through an agent under written authority, or by others in their presence. The signatures of guardians for their wards were unauthorized by the statute, as were also those by agents, especially when, as in this case, their authority was not proved before the Common Council or its committee. The remonstrance held the affirmative upon this question, and any defects in their proofs should be visited upon them.

2. It was competent for the Common Council of 1856 to act upon a petition and remonstrance presented to their predecessors in 1855. The case of Coles v. Trustees of Williamsburgh (10 Wend., 659) is directly in point, and so decides that question. In Wetmore a. Story (22 Barb., 414; S. C., 3 Abbotts' Pr., 262), it was decided that the resolution in question had not been adopted by the two Boards of the same Common Council, and was therefore invalid. It differed from the Williamsburgh case, which was acknowledged to be law.

3. The application for a certiorari in this case is at too late a day. The ordi

Matter of Eightieth street.

Thus, it seems that it entitles a property-owner to relief, where the street commissioner, by fraudulently over-estimating the quantity of rock excavation in grading a street, has awarded the contract for the work to a person apparently, but not truly, the lowest bidder.

nance or resolution of the Common Council, directing the improvement, was adopted in June, 1856. It was competent for those opposed to the measure to apply for a certiorari immediately thereafter. But instead of pursuing that course, they suffered the Common Council to proceed and make the necessary assessments, and out of $64,981.60, $29,046.62 has been collected and paid out for expenses and awards. It would be productive of great inconvenience and expense to arrest the proceedings at this late day. It will be far better that the parties should seek another remedy, which (if they have been wronged) would do justice to them without unnecessary injury to the public. (People a. Mayor, &c., of New York, 5 Barb., 43.)

In HUSTED'S CASE (Supreme Court, First District; General Term, November, 1863), it was Held, that a certiorari does not lie to review proceedings in a habeas corpus case, until after a final determination of the case: it does not lie upon an order committing defendant for a false return.

In this case, Amelia A. Husted had procured a habeas corpus to regain from Peter O. Husted the custody of her child.

The defendant made return to the writ of habeas corpus, that the child mentioned in the writ was not in his custody at the time of the issuing of the writ, or at the time of its service, or at any time during that period, and that, therefore, he could not produce her body.

The relator traversed the return, and on a trial of the issue, it was found false, and the court (CLERKE, J.) ordered the defendant to be committed and to pay a fine for the contempt.

J. R. Whiting, for the defendant, then applied to the court at general term, for a certiorari to review this determination, which now came on for hearing. (Present, SUTHERLAND, P. J., LEONARD and BARNARD, JJ.)

Gilbert Dean, opposed, raised the preliminary objection that the order in question was interlocutory and not final, and therefore not now reviewable.

After hearing counsel, the court reserved their decision, and on a following day announced it to be, that, by the statute (3 Rev. Stat., p. 892, § 85), no certiorari shall be issued in habeas corpus cases until a final determination shall have been made by the officer. That the proceeding, as brought before the court, is not reviewable on certiorari until a final adjudication as to the custody of the infant. The writ of certiorari was therefore quashed.

In FREEMAN a. OGDEN (Supreme Court, First District; General Term, February, 1864), it was Held, that summary proceedings to recover the possession of lands were reviewable by certiorari, and not by appeal.

This was a certiorari to C. W. Van Voorhies, Esq., Justice of the 7th District Court, New York city, to obtain the review of certain proceedings instituted by Jonathan M. Freeman against James W. Ogden, to recover possession of lands, &c.

Matter of Eightieth-street.

Certiorari to review proceedings relative to an assessment.

The writ was directed to the Mayor, Aldermen, and Com-· monalty of the city of New York; the proceedings sought to be reviewed were in relation to an assessment for regulating and grading Eightieth-street, between the Fifth-avenue and the East river, New York city. The street commissioner advertised for proposals for the work, estimating it at 20,000 yards of rock excavation, and 8,000 yards of earth excavation, and calling on the bidder to fix his price per cubic yard. The successful bidder proposed to do the rock excavation for nothing, and the earth excavation at one dollar per cubic yard. The true quantities were, rock 8,886 yards; earth, 33,663 yards. If the work had been awarded to other bidders, it would have cost $11,000. Certain of the property-owners took the present proceeding to set aside the assessment. The court below (Mr. Justice INGRAHAM), after delivering the opinion reported 16 ante, 169, made the following order: "The said justice being of the opinion that the petitioners are entitled to the relief for which they apply, and that the proceeding by certiorari is a suitable and appropriate proceeding in and by which to obtain such relief, but that in view of the rule of the court, if in this proceeding such relief is granted, it should be by the decision of the general term:

"Ordered, that the said motion as made at the special term be, and the same is hereby denied, but that the same be transferred to the next general term, and that the said petitioners have leave to bring on the said motion at the general term on the said writ, and the said return thereto, on the papers as submitted at the special term."

Stephen P. Nash, for the respondent, claimed that the New York Common Pleas had exclusive jurisdiction of the review of summary proceedings for the possession of land under sections 34, 351, of the Code, and ch. 193 of Laws of 1849, and that the remedy was by appeal.

George C. Goddard, for the relator, was stopped by the court.

The Court, (LEONARD, P. J., CLERKE and SUTHERLAND, JJ.) Held, that these proceedings were reviewable by certiorari, and not by appeal, and the review was properly to be had in the Supreme Court.

After argument, the proceedings before the justice were reversed and restitution ordered.

Matter of Eightieth-street.

John E. Parsons, for the relators.-I. The contract was in fraud of their rights. Property-holders are mere passive victims of corporation frauds. The most they can do, though not so required, is to give notice of the fraud: in this case, the city was apprised of it in 1857. The fraud, therefore, vitiates the

assessment.

II. The contract, and all proceedings based upon it, were also void, under the charter of 1853, as having been given to the highest instead of the lowest bidder. (Brady a. Mayor, &c., of N. Y., 2 Bosw., 173; Aff'd, 20 N. Y., 312.) All the bids were in the prescribed form, with adequate security, corresponding in every respect to the requirements of the ordinance.

III. To save the expense to themselves and the city of numerous suits or proceedings, in which the city would be unsuccessful, parties representing the larger part of the assessment unite in one proceeding, applying for a certiorari.

IV. Certiorari is the appropriate proceeding. 1. No relief can be granted under the act of 1858. (Laws of 1858, 574, ch. 338; Miller's case, 12 Abbotts' Pr., 121; Horn's case, Пb., 124.) 2. Nor under the act of 1841. (Laws of 1841, 143, ch. 171.) The assessors have no power to consider the validity of an assessment. Their only jurisdiction is to make a just and equitable assessment of the aggregate amount assessed, "among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire." (Davies' Laws, 526; Leroy a. Mayor, &c., of New York, 20 Johns., 430.) 3. Nor by action: the courts have uniformly refused relief by action, where the record shows the invalidity, on the very ground that the proper remedy was by certiorari. (Heywood a. City of Buffalo, 14 N. Y. (4 Kern.), 534; Betts a. City of Williamsburgh, 15 Barb., 255; Bouton a. City of Brooklyn, 15 Barb., 375; S. C., 7 How. Pr., 198; Van Doren a. Mayor, &c., of N. Y., 9 Paige, 388; Mayor, &c., of Brooklyn a. Merserole, 26 Wend., 132; Mace a. Trustees of Newburgh, 15 How. Pr., 161.)

V. The confirmation of the assessment was a judicial act, in this case exercised without jurisdiction on the part of the city or its board of assessors. The corporation has no power to impose upon property-owners a charge which could not be legally