People ex rel. Gas-light Co. of City of Syracuse v. Common Council of City of Syracuse

Majority

p. 346

SUPREME COURT.

The People ex rel. The Gas-light Company of the City of Syracuse agt. The Common Council of the City of Syracuse.

Onondaga Special Term,

January 28, 1876.

Headnote

Mandamus — what delay is fatal to the writ.

Where parties have acquiesced for nearly two years in the proceedings sought to he set aside, a mandamus will not he granted.

The writ is allowable in the discretion of the court. The delay for so long a time is fatal to the relief sought.

This was an application for a peremptory mandamus to compel the respondents to complete proceedings begun to acquire the lands of the relator for widening a street. The relator was awarded $5,600 by three commissioners appointed, by the county court of Onondaga county. The report of said commissioners was made and presented to the common council, and ordered filed on the 11th day of December, 1871. According to the charter of the city of Syracuse, it then became the duty of the common council to pass resolutions directing the completion of the proceedings. Nothing further was done in the matter until the 13th day of October, 1873, when the common council adopted a resolution rescinding its former action, and declaring all proceedings taken pursuant thereto abandoned and discontinued. No proceedings were instituted or attempted by the relator in respect thereto until the 29th of June,’ 1875, when an alternative writ of mandamus was allowed, to compel the common council to go on and complete the proceedings to acquire the title to the lands of the relator.

p. 347

The common council filed their return, and a motion was then made by the relator for a peremptory writ.

George F. Comstock, for relator.

Irving G. Vann, for respondents.

— If this application had been made promptly after the report of the commissioners, or after the resolution of the common council in 1873 abandoning the proceedings, the relator, under the decisions made by the court in this district (reported in 20 Howard, 491 ; Morgan, J. delivering the opinion), would have been entitled to the allowance of the writ asked for.

That case arose under the charter of the city of Syracuse, and seems to be in point and favorable to the relator.

The principles of the case were examined by the court of appeals, in a case reported in 56 N. Y., 144 , and conclusions were reached by the court of appeals that seem to weaken the case in 25 Howard as an authority.

In the Matter of Syracuse, Binghamton and N. Y. R. Co. agt. Smith, it was held by Hardin, J., that until the formal report is made, filed and confirmed, the proceedings in railroad cases to acquire lands may be discontinued. That result was sustained by the general term in this department (S ee also Hudson R. R. R. Co. agt. Unswater, &c., 3 Sand, 690).

This writ is allowable in the discretion of the court.

The application for it was not made until more than twenty months after the resolution of the common council abandoning the proceedings.

The delay is fatal to the relator (People agt. Seneca Common Pleas, 2 Wend., 264 ).

In that case the delay was one year, and the writ was refused (See also 2 Johns. cases, 217; 16 Johns., 59 ; 10 Wend., 285 ; 2 Crary, Sp. Pro., 62).

The writ must be refused, and the motion is therefore denied with costs.