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People ex rel. Keating v. Prendergast

151 A.D. 541 Court Second Department, Decision date 1912-06-14 English

Delivered by Woodward, J.:

Contents

Majority

p. 541
The People of the State of New York ex rel. Arthur E. Keating, Appellant, v. William A. Prendergast, as Comptroller of the City of New York, Respondent.
Second Department,
June 14, 1912.

Headnote

Mandamus—peremptory writ commanding cancellation of tax sale — petition on information and belief.
A peremptory writ of mandamus commanding the comptroller of the city of Hew York to accept payment of certain unpaid taxes upon lands described in the petition and to cancel the record of sale, will not be issued upon a petition based on information and belief.
Such a petition does not show conclusively that the petitioner has a clear legal right to the relief demanded.
Appeal by the relator, Arthur E. Keating, from an order of the Supreme Court, made at the Kings County Special
p. 542
Term and entered in the ■ office of the clerk of the county of Queens on the 22d day of April, 1912, denying the relator’s motion for a peremptory writ of mandamus commanding the respondent to accept payment of certain unpaid taxes upon lands described in the petition and to cancel the record of sale of said lands.
J. J. Kramer, for the appellant.
James D. Bell [Sanders Shanks and Archibald R. Watson with him on the brief], for the respondent.

The learned court at Special Term has refused to grant a peremptory writ of mandamus to compel the respondent. to receive the taxes and to cancel the record of sale, and it is sufficient reason for affirming the order that the petition does not show conclusively that the petitioner has a clear legal right to the relief which he demands. The petition alleges on information and belief that “ during the years 1866 to 1883, inclusive, the said property was owned by a non-resident of the tax district in which said lands were located,”, and then points out objections to the assessment and subsequent sale. But if the property was not owned by a non-resident, many of the objections would be without force, and a peremptory writ of mandamus can issue properly only where the legal right is clear and distinct.

The relator has a perfect remedy through an equitable action, where all of the questions can be tried out, and a peremptory writ ought not to issue upon a petition based on information and belief. An alternative writ issued in the first instance in People ex rel. Cooper v. Registrar of Arrears ( 114 N. Y. 19 ), and upon the facts being established a peremptory writ was issued, but here the petitioner demands relief upon the facts which he has stated, and these facts are not so certain that a court would be justified in granting the writ.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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