Matter of Eightieth-street.

enforced by the party in whose favor it is imposed. The complainants being numerous, the court will not compel them to individual actions for the recovery of amounts illegally exacted, but having by a single proceeding the matter and all the parties before it, will prevent by its action a multiplicity of suits. (Bouton a. City of Brooklyn, 7 How. Pr., 198; S. C., 15 Barb., 375; People a. Mayor, &c., of Brooklyn, 9 Barb., 535; Betts a. City of Williamsburgh, 15 lb., 255; Leroy a. Mayor, &c., of N. Y., 20 Johns., 430; Starr a. Trustees of Rochester, 6 Wend., 565; Wilson a. Mayor, &c., of N. Y., 1 Abbotts' Pr., 415.)

VI. An assessment is a proceeding on the part of the corporation, the board of assessors being one of its bureaux. The writ is therefore properly directed to the Mayor, &c. And the record consists not merely of what the assessors may see fit to incorporate in the roll, but of all the proceedings essential to show a valid assessment,--the ordinance, estimate, proposals, bids, award, confirmation, contract, certificate of work done, action of the assessors, &c., &c., and all action of the common council in respect to the proceeding. The record thus made up, in this case, proves the illegality of the assessment. 1. By reason of Slattery not having been the lowest bidder. 2. By reason of his fraudulent complicity with the street commissioner. The circumstances are inconsistent with honest intent, and lead irresistibly to the inference of fraud.

John E. Develin, for the respondent.-I. The writ should be quashed, out of regard to public inconvenience. Rex a. Utoxeter, 2 Strange, 932; Rex a. Justices of Shrewsbury, Ib., 975; Rex a. King, 2 Term., 234; Lawton a. Commissioners of Cambridge, 2 Cai., 182; People a. Supervisors of Alleghany, 15 Wend., 198; Elmendorf a. Mayor, &c., of N. Y., 25 Wend., 693; People a. Supervisors of Queens, 1 Hill, 195; People a. Mayor, &c., of N. Y., 2 1b., 9; Matter of Mt. Morris Square, 2 Ib., 15; Case of Fifty-first-street, 3 Abbotts' Pr., 232; People a. City of Rochester, 21 Barb., 656, 664; People a. Stilwell, 19 N. Y., 531; Dixon a. City of Cincinnati, 14 Ohio, 240.)

II. The relators have a remedy in the nature of an appeal; and where a remedy of that character exists, a certiorari will not be granted. (Laws of 1841, 143, ch. 171; Laws of 1858,

Matter of Eightieth-street.

574, ch. 338; Davies' Laws, 537, § 182; Matter of Mt. Morris Square, 2 Hill, 14, 27; People a. Covert, 1 Ib., 674; Storm a. Odell, 2 Wend., 287.)

III. The writ is misdirected, and should be quashed for that reason. (Laws of 1861, 702, ch. 308, § 1; Bogert a. Mayor, &c., of N. Y., 7 Cow., 158.) It was by the board of revision and correction, constituted by the act of 1861, that this assessment was confirmed, and it is to that board that the writ should have been directed. (Bogert a. Mayor, &c., of N. Y., 7 Cow., 158.) IV. The writ removes nothing but the record of the proceedings of the tribunal whose acts are sought to be reviewed, and the only question subject to review is, whether that tribunal has kept within the limits of its jurisdiction. (Birdsall a. Phillips, 17 Wend., 464; Allyn a. Commissioners of Schodack, 19 Ib., 342; ex-parte Mayor of Albany, 23 Ib., 277; Stone a. Mayor, &c., of N. Y., 25 Ib., 157, 167; Nichols a. Williams, 8 Cow., 13; People a. Mayor, &c., of N. Y., 2 Hill, 9; People a. Overseers of Barton, 6 How. Pr., 25; Haviland a. White, 7 Ib., 154; People a. City of Rochester, 21 Barb., 656, 665; People a. Goodwin, 5 N. Y. (1 Seld.), 568.) The only matter in the nature of a record contained in the return, is the ordinance authorizing the work, the estimate and assessment made by the persons authorized for that purpose, and the confirmation of the assessment by the board of revision. (People a. Mayor, &c., of N. Y., 2 Hill, 9.)

V. The objections urged against the assessment are not available to the relators, since they do not affect the jurisdiction of the assessors, or the jurisdiction of the board by whom the assessment was confirmed. (Harman-street, Matter of, 16. Johns., 231; John and Cherry-streets, Matter of, 19 Wend., 659, 671; William and Anthony streets, Matter of, Ib., 678, 695.) The relators having failed to present their objections to the assessors, are estopped from questioning its regularity upon any except jurisdictional grounds. (Miller's Case, 12 Abbotts' Pr., 121; Horn's Case, Ib., 124; Bennett's Case, Ib., 127; Keyser, Matter of, 10 Zb., 481.) The contract forms no part of the assessment proceeding. (Hays' Case, 14 Abbotts' Pr., 53.)

CLERKE, J.-I presume that nothing is better settled in this State, than that, in cases like the present, the allowance or re

Matter of Eightieth-street.

fusal of a writ of certiorari rests in the sound discretion of the court. The local public authorities, who are invested with the power of laying assessments and awarding damages, exercise powers in which the people at large are concerned; and as BRONSON, J., observes, in People a. Supervisors of Alleghany (15 Wend., 198, 206), "Great public inconvenience might result from interfering with their proceedings." Besides, it appears to me that the parties alleged to have been injured in this case had a complete remedy under the act of 1858. This is a remedial statute, and should be liberally construed. It affords a summary remedy to all who have been affected by any fraud or legal irregularity in proceedings relative to any assessments for local improvements in the city of New York. The petition discloses a palpable fraud, concocted and carried out by the contractor and the street commissioner; in short, a positive conspiracy to defraud the petititioners. This is not at all like Miller's case (12 Abbotts' Pr., 121), to which the counsel for the petitioners refers us. The ground of the application in that case was, that a part of the work included in the assessment was constructed without any contract, though it exceeded five hundred dollars. The judge considered that this was an irregularity which did not affect the jurisdiction of the tribunal by which the assessment was imposed, and unless such an objection were raised before confirmation the irregularity was cured. But in this case, as I have said, gross and palpable fraud is alleged, and, if true, the petitioners were clearly entitled to the relief afforded by the act of 1858. There are other objections to this application not necessary now to notice.

The writ should be quashed.

LEONARD, J.-It is not satisfactory to examine alleged frauds in fact upon certiorari, where the frauds are to be found by induction, and not by evidence taken on the question—the allowance of the writ being discretionary. I concur in quashing it, without expressing any opinion as to the other remedies.

SUTHERLAND, J.—I concur in Judge CLERKE'S conclusion.

Hotop a. Neidig.

HOTOP a. NEIDIG.

Supreme Court, First District; General Term, March, 1864.

ASSIGNMENT.-FRAUD.--VARIANCE.

Where an assignment for the benefit of creditors provided for a preference to those named "in the annexed schedule," and such schedule was not made till two days after the delivery of the assignment, there being evidence of entire good faith on the part of assignor and assignee,-Held, that both the assignment and schedule were valid.

Under a complaint framed to set aside an assignment merely on the ground of fraud, it is not competent for the plaintiff, on a failure to obtain the principal relief, to insist on a judgment settling the construction of the instrument.

Appeal from a judgment.

This action was brought by Gustavus H. Hotop against Heinrich Neidig and Newell Bliss, to set aside an assignment as fraudulent against creditors. It had been tried before Hon. C. P. KIRKLAND, referee. The defendant Bliss made a general assignment to Neidig for the benefit of creditors. The first trust was to pay the debts of N. Bliss & Co., which are enumerated and described in a schedule thereof hereto annexed, marked schedule B, and all interest moneys due or to grow due thereon."

Bliss, when he executed the assignment, intended that a schedule B should be afterwards annexed to the same, preferring two notes of $2,500, indorsed by one George Gault, which were under discount. The reason stated, on the trial, why the schedule was not annexed when the assignment was executed was, that the conveyancer had not then a precise statement of the amount of the notes, and Bliss wished to execute the assignment at once, and before such statement was procured, because he feared, as the referee found, without legal reason for such fear, that the creditors of N. Bliss & Co. might issue attachments against him, and seize the firm property, in the event of his leaving the State, which he contemplated doing at once. Two or three days after the assignment was executed

Hotop a. Neidig.

and delivered, and possession of the assigned property taken under it, the conveyancer who prepared the assignment prepared a schedule, B, sent it to Bliss, who signed it in the presence of a witness, and then gave it to the assignee, Neidig, requesting him to attach it to the assignment.

Neidig declined to attach the schedule B to the assignment, but it was afterwards attached thereto by Bliss's former partner, and again detached therefrom by Neidig, and kept detached; but Neidig, after suit brought, claimed to act under the assignment, and schedule B as a part of it. The referee found that in the conduct of Bliss, in the premises, there was in fact no fraudulent intent. He found, as matter of law, that the assignment and the schedule B were to be regarded as one instrument, the same as if the schedule had been annexed when the assignment was executed; and that the execution and delivery to the assignee by Bliss of schedule B, several days after the execution and delivery of the assignment, in pursuance of his fixed intention to do so, formed at the time when he executed the assignment, did not invalidate the assignment or make it fraudulent in law, and thus void. The referee, therefore, dismissed the complaint, but without costs. Thereupon judgment was entered up in favor of the defendants, and this appeal taken therefrom.

Kaufman, Frank & Wilcoxson, for the appellant.-I. By the terms of the assignment, and by the evidence of Bliss, it appeared that he executed and delivered the assignment with the intent and purpose, on his part, at the time he executed it, of thereafter making out and annexing thereto a schedule of preferred creditors; and the evidence is clear that some two or three days after the execution and delivery of such assignment, he consummated his preconceived intent and purpose, by making out and signing a schedule of preferred creditors, and delivering it to the assignee as part and parcel of the assignment. The assignment, as between the assignor and assignee, transferred the property irrevocably to the assignee, and the assignor could not modify said assignment subsequently by a schedule of preferred debts, or execute a new assignment. (Porter a. Williams, 9 N. Y. (5 Seld.), 142; Bell a. Holford, 1 Duer, 58.) The execution of schedule B by the assignor was also nugato