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Bussing v. City of Mount Vernon

121 A.D. 502 Court Second Department, Decision date 1907-10-11 English

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p. 502
John Bussing, Jr., Respondent, v. The City of Mount Vernon, Appellant.
Second Department,
October 11, 1907.

Headnote

Stare decisis — trial court governed by rule laid down, in Appellate Division.
■ A referee should follow a prior decision of the Appellate Division although a trial justice has subsequently made a contrary decision.
Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of tlie plaintiff,-entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the report of a referee.
p. 503
David Swits, for the appellant.
Milo J. White, for the respondent.

The judgment vacates an assessment on the plaintiff’s property for the opening of a street in the city of Mbunt Yernon, the defendant, on the ground that whereas the charter of the city required “ a unanimous vote ” of all of the members of the common council to allow the improvement, there was a unanimous vote of only eight of. such members, all that were present, the whole number being ten. That this did not make the proceeding and the assessment void was decided and affirmed in this court (Matter of City of Mount Vernon, 34 Misc. Rep. 225 ; 64 App. Div. 619 ). Nevertheless another justice thereafter in the case of one of the land owners assessed decided to the contrary, and no appeal was taken from this judgment by the city. This was all irregular. Our decision should have been followed. The learned referee in the present case felt constrained to follow this later decision, but he was under no such constraint; he should have followed our decision. We also deem it strange that when the appeal was before us in the matter of the writ of mandamus to compel the- cancellation of the assessment in accordance with' this later judgment (People ex rel. Jardine v. Brush, 115 App. Div. 688 ), we were not informed that the proceeding and assessments were the same that we had formerly upheld in the said case first tried. ■ The square decision there given in favor of the city should not be permitted to be frittered- a-way.

The judgment should be reversed, with costs, and the complaint dismissed.

Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment reversed, with -costs, and complaint dismissed, with costs.

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