People ex rel. Smith v. Mayor of New York

Headnote

An application for leave to make up a record, with a view to remove the cause to the Court of Errors; upon a decision of this court quashing a certiorari for errors appearing upon the face of the writ, and not upon the merits, will not be allowed.

Motion by plaintiffs, that the plaintiffs have leave to make up and file a

Record of the judgment of this court on the certiorari in this cause.— It appears on the part of plaintiffs, that the writ of certiorari in this cause was quashed by this court, by a rule, of 5 January, 1844. That the plaintiffs are desirous, and have been advised to bring a writ of errror to this court, to remove the cause to the Court of Errors; that no record has been made up and filed. On the part of the defendants, it appears, that the certiorari in this cause was allowed for the purpose of bringing before this court an assessment, relative to the extension of a sewer, in the 6th Avenue, in the city of New York, that although a return had been filed to said certiorari previous to the said motion, such return was not before the court on the argument of the said motion, nor considered in the decision thereof; that the return has never been before the court on argument in any shape. That the motion was founded solely on the face of the certiorari itself, and of the affidavit of the relators, upon which it had been allowed. And the grounds urged for quashing the writ, were, that it would not lie to review proceedings of such a character as an assessment for a sewer; not being judicial in their nature; and alleged it had been improvidently allowed.