Stow v. Common Council — 54 N.Y.S. 1044

Majority

p. 1044

STOW et al. v. COMMON COUNCIL OF CITY OF KINGSTON.

(Supreme Court, Special Term, Ulster County.

December, 1898.)

Headnote

Kingston City Charter—Review of Assessment of Common Council—Certiorari.

Under the Kingston city charter (Laws 1896, c. 747), providing that, when an assessment shall be confirmed, .a duplicate of the certificate, which shall be deemed an original, shall he filed with the city clerk, and that such clerk shall be custodian of all city records and clerk of" the common council, certiorari will lie to review an assessment after the certificate and Warrants have passed to the treasurer, since the record is still under the council’s control.

Application by Daniel B. Stow and others against the common council of the city of Kingston for certiorari to review a special assessment, under the provisions of its charter (Laws 1896, e. 747).

Granted.

George B. Adams, for petitioner.

John W. Searing, Corp. Counsel, for city of Kingston.

The affidavits filed "by the corporation counsel state that the common council, on the 21st day of October, confirmed the special assessments involved in this application, and that on the next day warrants for the collection of the assessments, under the seal of the city, and the signature of the mayor and city clerk, were issued and delivered to the treasurer, commanding him to collect the amount thereof. The learned corporation counsel thereupon makes the preliminary point that, the certificate and warrants having passed into the hands of the treasurer before a writ of certiorari was obtained, it is now too late to compel the common council to reverse its action, even if it have committed error, for the reason that its power is spent. The charter of the city provides that, when any assessment of the character here involved shall be finally confirmed, the certificate thereof, together with a duplicate, shall be filed with the city clerk, and both shall be deemed originals, to either of which shall be annexed the warrant for the collection of the assessment. It makes the city clerk the custodian of all the records, books, and papers of the city, declares his office a town clerk’s office for designated purposes, and provides that he shall act as the clerk of the common council. Laws 1896, c. 747. The record, therefore, is, or legally should be, still under the control of the common council. The Code of Civil Procedure makes a writ of certiorari a state writ, which can be granted only- at a term of the appellate division of the supreme court or at a special term thereof. As the appellate division and the special term are not always in session, it is manifest that, if the contention of the corporation counsel be correct, the common council can always, by acting with the celerity it did in this instance, prevent any review of its action by certiorari, no matter how grossly unjust such action might be. It is highly improbable that the legislature intended by the charter to confer such absolute power upon a body of such limited jurisdiction. The case of People v. Tompkins, 40 Hun, 228 , relied upon by the corporation counsel, was disapproved

p. 1045

by the court of appeals in Re Corwin, 135 N. Y. 245 , 32 N. E. 16 , in so far as it may be construed to hold that the writ could not issue after the assessors had parted with the roll. It is important that every citizen should be afforded protection against possible oppressive action of municipal bodies, and while the contention that the common council could have assessed the entire cost of this improvement upon the property of the relators, instead of 75 per cent, thereof, may be tenable, it is not to be assumed that that body would, in this instance, have departed from the practice of many years. That, however, is a question which can be more fully considered hereafter, and without, therefore, discussing the merits of the case, the preliminary objection is overruled, and a writ of certiorari is granted.

Cases cited

In re Corwin 135 N. Y. 245 N.Y. 1892-10-04 p. 1045