Bogart v. Mayor, Aldermen & Commonalty of New York

Headnote

A certiorari to remove the proceedings of of^h^dty^of New_ York, in opening and widening not Re directed to the corpora-

Semble, it rected to6 the judges of the acting^craimissioners.

tiorari should h^ smih^'casa^ without^ cause davi^or’otherwise than by mere snggestion of sel. conn

The plaintiffs caused a writ of certiorari to he issued, x 7 directed to the Mayor, Aldermen and Commonalty of the <% of New York, reciting that the mayor, &c., had lately determined to widen Bancker street; had caused commis7 sioners to be appointed by the supreme court; which coni' missioners had reported estimates and assessments, by virtue, or by pretence of the act, &c., and that there were certain errors in the estimates and assessments, as to the plaintiffs, which they were injured; that they had objected in writing and by affidavit; but the estimates and assessments had been, as the defendants alledged and pretended, confirmed; that the defendants (as was alleged) had taken measures to carry the estimates and assessments into effect; which were contrary to law, (as was alledged:) and commanding the defendants to certify to the supreme court the estimates and assessments of the commissioners, the obieetions, affidavits and proof laid before them, with all the J ’ r ’ proceedings of the defendants thereupon; the report of the .commissioners with all things touching the same, as fully as the same remained in their custody, possession or power; and also all and singular the acts, orders, minutes, reports, process, and proceedings, concerning the widening of Bancker street, with all things touching the same, as fully and entirely as the same remained in their possession, custody or power, &c.; that the supreme court might cause to be done what of right they should see fit to be done.

This writ was allowed at chambers, without any cause being shown upon affidavit, or otherwise, except by suggestión of counsel.

moved to set it aside on everal grounds; and (among others) because it was *misdirected, and allowed without cause properly shown. He He said the direction should have been to the judges of the supreme court, sitting as commissioners. They made the appointment of commissioners, and the order of confirmation, on filing with their clerk the papers, or most of the papers required by the writ to be certified. The corporation are the party.

That cause should have been shown in some way beside the mere suggestion of counsel, he cited Munro v. Baker, 6 Cowen, 896;

Perhaps the certiorari is misdirected ; or rather wants a full direction. It is not denied that most of the proceedings sought to be questioned, are before the judges of the court as commissioners; though certainly some of them- remain with the defendants, who alone can certify them.

The proceedings of the corporation affect the title to lands; and are therefore removable of course within the principle laid down by this court in The People v. Runkel, 6 John. Rep. 334 .

If this be so, the court will amend the direction of the writ.