Delaware, L. & W. R. v. Gordon — 19 N.Y.S. 533

Majority

p. 533

Delaware, L. & W. R. Co. v. Gordon, Town Collector, et al.

(Supreme Court, General Term, Fifth Department.

June, 1892.)

Headnote

Temporary Injunction—Appeal—Affirmance.

Au order denying a temporary injunction in an action to restrain the collection of taxes, based on an order in a proceeding by certiorari adjudging the assessment void, must necessarily he affirmed where the order in the certiorari proceeding has been reversed, and the assessment in all respects affirmed.

Appeal from special term, Monroe county.

Action by the Delaware, Lackawanna & Western Railroad Company against Thomas Gordon, collector of the town of York, and the board of supervisors of Livingston county, for injunction. From an order entered in Livingston county, denying plaintiff’s motion for injunction pending the action, plaintiff appeals.

Affirmed.

Argued before Dwight, P. J„ and Macomber and Lewis, JJ.

/. G. 'Milburn, for appellant. J. B. Adams, for respondents.

The injunction was sought to restrain the collector of taxes of the town of York, in Livingston county, from collecting a tax assessed against the plaintiff in the year 1891. The ground of the action was that such tax and assessment had been adjudged illegal and void, and ordered to be stricken from the assessment roll of the town, by an order of this court, made at special term in a proceeding by certiorari entitled "The People ex rel. The D., L. & W. R. R. Co. agt. William H. Clapp & al.. Assessors, and Charles Miller, Town Clerk of the Town of York.” That order has been reviewed on appeal at the present term of this court, and has been reversed, ( 19 N. Y. Supp. 531 ,) and the assessment in question in all respects confirmed. There is therefore no longer any basis for the relief asked for in this action, and the order denying the temporary injunction must necessarily be affirmed.

Order appealed from affirmed, with $10 costs and disbursements.