People ex rel. Nisbet v. Common Council — 36 N.Y.S. 64

Majority

p. 64

(90 Hun, 495.)

PEOPLE ex rel. NISBET v. COMMON COUNCIL OF CITY OF AMSTERDAM et al.

(No. 20.)

(Supreme Court, General Term, Third Department.

December 3,1895.)

Headnote

Appeal from special term, Montgomery county.

Petition by Charles S. Nisbet for a writ of prohibition to the common council of the city of Amsterdam, William A. Fisher, as mayor, and Thomas J. Hazlett, as clerk, of such city, to restrain defendants from using, considéring, or taking cognizance of certain testimony taken by the law committee of the common council relating to a claim of relator against such city, and prohibit-, ing such law committee from returning the same to the council, or taking any further testimony in the premises. From an order of the special term granting the writ, defendants appeal.

Affirmed.

Argued before MAYHAM, P. J., and HERRICK and PUTNAM, JJ.

Louis H. Reynolds, for appellants.

Edward P. White (Nisbet & Hanson, of counsel), for respondent.

This is an appeal from an order granting a writ of prohibition. It arises out of the same proceedings that have been considered by us at this term in the case of People v. Common Council of City of Amsterdam, 36 N. Y. Supp. 59 . After the claim of the relator, as allowed by the common council, had been vetoed by the mayor, it was tiren resubmitted to the common council, and by them referred to its law committee, as stated in the opinion in the last-named case. The law committee proceeded to take testimony as to the value of the relator’s services. The relator requested leave to attend such hearing of the law committee, and take part in said investigation, but that committee refused such request, whereupon proceedings were taken, which resulted in the granting of the order which is now appealed from, which restrains and prohibits such committee from proceeding with such investigation, and from making any report of the result of their investigation to the common council.

As I have stated in the discussion of the principal case, the charter of the city of Amsterdam provides that claims against such city shall be referred to the “committee on auditing accounts,” and that such provision of the statute excludes other committees from acting. The law committee was therefore without jurisdiction. In addition, it is to be said that the law committee was proceeding to pass upon the merits of the relator’s' claim, presumably with the intention of making a report thereon to the common council, without giving him an opportunity to be heard, without permitting him to confront the witnesses being examined or to cross-examine them. A claimant’s rights cannot be disposed of in that way. Such a proceeding to determine a person’s rights or interests is contrary to the law of the land; it is not due process of law.

The order appealed from should be affirmed, with $10 costs and disbursements.

MAYHAM, P. J., concurs. PUTNAM, J., not acting.