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People ex rel. New York Elevated Railroad v. Board of Aldermen

10 Abb. N. Cas. 33 Court N. Y. Supreme Court, First Department, English

Delivered by Donohue, J.

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p. 33
PEOPLE ex rel. NEW YORK ELEVATED RAILROAD COMPANY v. BOARD OF ALDERMEN OF NEW YORK.
N. Y. Supreme Court, First Department,
Special Term and Chambers,
June, 1881.

Headnote

Stay of Proceedings.—Certiorari.—Code of Crv. Pro. § 2131.— Taxes.
Under section 2131 of the Code of Civil Procedure,—providing that the court granting a certiorari may, in its discretion, stay the execution of the determination sought to be reviewed,—the order for stay should be contemporaneous with the writ. If not so applied for, it should be refused when there has been long delay since the determination.
It seems, that that provision is not applicable in a proceeding under a 'special statute.[1]
Motion for stay of proceedings for collection of taxes.
In July, 1880, on the petition of The New York Elevated Railroad Company, The Metropolitan Elevated Railway Company, and the Manhattan Railway Company, writs of certiorari were issued to review the determination of the commissioners of taxes in rela
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tian to the taxation of the property of the petitioners, and to determine the validity of the taxation.
Pending these proceedings and before any return to the writ of certiorari, although several months had elapsed since it was issued, the petitioners applied for a stay of proceedings preventing the collection of the taxes until a decision had been rendered on the certiorari.
Dorsheimer, Bacon & JDeyó, for relators and motion.
Wm. O. Whitney, counsel to the corporation, opposed.

In these cases the court is asked, on certiorari issued to the supervisors and tax commissioners, to stay proceedings, pending the result of the review asked, for the collection of taxes sought to be reviewed. No case is cited, nor did I understand it to be argued that, prior to the Code in its present shape, such stay could be had ; and the question therefore presents itself: Does the Code allow me to stay the proceedings? Section 2131 is the provision invoked.[1] Perhaps, on a cursory reading of that section this might appear so, hut that the legislature should make such a radical change as to place the control of

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taxation so much in the hands of the court, without in some way referring to that subject specifically, I do not think probable. The bond provided for seems also one to protect individuals, and not applicable to cases of this kind; but, aside from' this, the Code, section 2147, expressly- provides a restriction, which, it seems to me, applies to the writ.[1] The act under which it is issued is in existence, and makes, as I think, all "the provision that the legislature intended to make in regard to the writs allowed in these cases, and did not intend to permit the stay of proceedings asked. In addition to this, it seems to me, from the terms of section 2131 itself the order for a stay should accompany the writ asked or be a part of the writ. In this case months have elapsed since the issuance of the writs, and now, after the assessment of value has passed into a tax laid, it does not seem to me proper to interfere with the execution of the tax.

* Section 2131 is as follows: “Except as prescribed in this section, a writ of certiorari does not stay the execution of the determination to be reviewed, or affect the power of the body or officer, to which or to whom it is addressed. The court which grants the writ, may, in its discretion, and upon such terms, as to security or otherwise, as justice requires, direct, by a clause in the writ, or by a separate order, that the execution of the determination be stayed, pending the certiorari, and until the further direction of the court. A bond, undertaking, or other security, given L to procure such a stay, is valid and effectual, according to its terms, in favor of a person beneficially interested in upholding the determination to be reviewed, who is admitted as a party to the special proceeding, as prescribed in section 2137 of this act.” *35 *Section 2147 is as follows: “Where ’the right to a writ of certiorari is expressly conferred, or the issuing thereof is expressly authorized, by a statute passed before, and remaining in force after, this article takes effect, this article does not vary, Or affect in any manner, any provision of the former statute, which expressly prescribes a different regulation, with respect to any of the proceedings upon the certiorari to be issued thereunder.”