People ex rel. Adam v. Coleman — 2 N.Y. St. Rep. 616

Majority

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People ex rel. Sarah S. Adam and others, App’lts, v. Michael Coleman and others, Commissioners of Taxes, etc., App’lts. Same, App’lts, v. Board of Aldermen of the City of New York, Resp’t.^[1]

(Supreme Court, General Term, First Department,

Filed June 18, 1886.)

Headnote

Certiorari, writ of—How petition may be verified—Taxes and assessments—Laws 1880, chap. 269, § 1.

A writ of certiorari was issued to review the legality of an assessment made for the purpose of taxation upon the shares of shareholders of the Merchants’ National Bank of New York. The)r number about 800, and the petition was subscribed by N. J. H. Edge for himself and all the other petitioners, and it was verified by him. It was also subscribed by B. Z. & B., attorneys for the petitioners. Upon motion to quash the writ t Held, that it was not required fry Laws 1880, chap. 269, § 1, that all the persons in whose behalf the petition may be presented shall subscribe and verify it, but they may be represented by attorneys acting in their behalf, and it is to be assumed that the attorneys had authority to subscribe the' petition.

Appeal from an order quashing and dismissing a writ of certiorari as to all the petitioners named therein except Nelson J. H. Edge.

John E Burrill, for app’lts; David J. Dean, for resp’ts.

The writ was issued to review the legality of an assessment made for the purpose of taxation, upon the shares of the shareholders of the Merchants’ National Bank of the city of New York. They are about eight hun

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dred in number, and the petition was subscribed by Nelson J. H. Edge for himself and all other petitioners, and it was verified by him. It was also subscribed by Burrill, Zabriskie & Burrill, attorneys for the petitioners. The application to quash and dismiss the writ was made upon the ground that it could not be issued in this manner, for the benefit of petitioners who did not themselves subscribe the petition. But section 1 of chapter 269 of the Laws of 1880, under which the petition was presented and the writ was issued, does not require that all the persons in whose behalf the petition may be presented shall subscribe and verify it. It permits all persons who may be affected in the same manner by the assessment upon the same roll to unite in the same petition, and to obtain the writ of certiorari for their joint, as well as several benefit, and that may be done by the representations of one petition, the truth of which may be verified by either of the petitioners. The act requires no more than that, and the court therefore has no authority for imposing any further obligation in this respect upon the petitioners. Neither does it require in terms, nor by reasonable implication, that the petition shall be signed by each of the petitioners acting individually for himself or herself, but its provisions will be satisfied where, as in this case, they are represented by attorneys acting in their behalf.

What they may do for themselves, they may do through the intervention of attorneys acting under their authority. And where attorneys subscribe a petition, as this has been subscribed, it is to be assumed that they have not done so without the authority of the petitioners, but rather that they have obtained such authority before subscribing the petition, in such a manner as imports the delegation of the authority to do so to the attorneys. In this respect the proceeding is very much the same as the commencement of a suit in a court of law or equity, where the complaint is subscribed by the attorney or attorneys for the plaintiff. It is there assumed to have been regularly done, under the authority of the party who is represented, and if that is not the case, it devolves upon the person alleging the fact, so to be, to establish it by proof before the proceeding can be held to be irregular, or' the complaint or petition be set aside. That was not done in this case, but the application was made upon the petition, itself and its verification by one of the petitioners. It could not be allowed to succeed, without assuming, when the fact was not established by proof, that the attorneys were acting for and endeavoring to represent petitioners for whom they had received no authority. That could not regularly be done, especially

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as it appeared from the petition that it was impracticable to prove this signing and verification by each one of the shareholders. The order which was made should be reversed, with costs, and an order entered denying the respondent’s motion.

Brady, J., concurs.

Note.—Appeal from an order quashing and dismissing a writ of certim'ari issued to review assessments.

David J. Dean, for resp’t; John E. Burrill, for appl’ts.

Daniels, J.—The-facts in this proceeding are precisely the same as in the case of People, v. Coleman and others, already considered, except that it has byen instiiuted against the board of aldermen. And as the order dismissing the writ as to all the petitioners, except Nelson J. H. Edge, was considered to be unauthorized in that case, it is equally so in this; and it'should be reversed and an order entered denying the motion, without costs.

Be adv, J., concurs.