Majority
p. 312PEOPLE ex rel. JARDINE v. BRUSH, Mayor, et al. (Supreme Court, Appellate Division, Second Department November 28, 1906.)
Headnote
Mandamus—Street Assessment—Cancellation of Record—Limitations— Statute Applicable.Laws 1903, p. 1106, c. 482, § 6, constituting part of the charter of a city, limiting the time for commencement of “all proceedings” to vacate or reduce assessments to one year has no application to mandamus proceedings to compel the proper officials to do the formal act of canceling on the books an assessment which has been adjudged void and vacated in a suit brought for that purpose.
Mandamus proceedings, on the relation of Jessie S. Jardine, individually and as testamentary trustee of George E. Jardine, deceased, against Edward F. Brush, as mayor, and Leslie D. Dateman and others, as aldermen, together composing the common council of th© city of Mt. Vernon. From an order denying the writ, relator appeals. Reversed.
Application by an owner of a lot of land in the city of Mt. Vernon to compel the mayor and common council to cancel an assessment thereon for a street opening.
The petitioner heretofore brought a suit against the said city alone for the cancellation of the said assessment on the ground that it and the proceedings leading up to it were void, and obtained judgment therein to that effect. The mayor and common council refuse to do the formal act of cancellation on the books.
p. 313Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MILDER, and GAYNOR, JJ.
Justus A. B. Cowles, for appellant.
David Swits, for respondents.
Section 6 of chapter 482, p. .1106, of the Laws of 1903 (constituting part of the charter of the city of Mt. Vernon), which limits the time for the commencement of “all proceedings” to vacate or reduce assessments to one year has no application to this case. This is not such a proceeding. The assessment in question has been adjudged void and vacated in a suit brought for that purpose, and the peremptory writ of mandamus applied for and denied is only to compel the proper officials to do the formal act of vacating on the books.
The order should be reversed and the application granted.
Order reversed, with $10 costs and disbursements, and motion for writ of mandamus granted, with costs. All concur.