People ex rel. Stevenson v. Gilon — 36 N.Y. St. Rep. 1004

Majority

p. 1004

The People ex rel. Vernon K. Stevenson et al. v. Edward Gilon et al., Ass’rs, et al.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

1. Certiorari—Assessments.

A certiorari will not lie to review the action of the hoard of assessors in levying an assessment for improvements, as there is no final determination of the objections raised thereon until they are considered by the board of revision, and also because the consolidation act provides other remedies to which relators should resort.

2. Same.

Where the only evidence presented to the appellate court on which the relators seek to avoid an assessment is contained in their attorney’s affidavit, which is on information and belief, the record is not sufficient to enable the court to act thereon.

Certiorari to review the action of the board of assessors and the board of revision in imposing and confirming an assessment for the building of a sewer in Eighth avenue, between One Hundred and Fifth and One Hundred and Fourteenth streets. The list was made up in the usual way; objections were urged before the board of assessors^ which were overruled, and the list transmitted to the board of revision and correction. Prior to such transmission the certiorari herein was obtained and the confirmation by the board of revision of the assessment was subsequently made.

Truman S. Baldwin, for relators; George L. Sterling, for resp’ts.

The board of assessors are appointed under § 865 of the consolidation act,- and who, on completing the assessment lists, transmit them, as required by the statute, to the board of revision and correction.

That board, or a majority, are obliged by § 867 of the consolidation act to perform all powers and duties relative to the revision, correction and confirmation of assessment lists specified in the various laws relating to assessments in the city of New York, other than assessments made by commissioners appointed by a court or justice. They have the power, and it is their duty, to consider on the merits all objections made to any’assessment and to subpoena and examine witnesses in relation thereto, if necessary, and to confirm said assessments or to refer the same back to the board of assessors for correction in such respects as they may determine. The importance of these provisions is apparent from the fact that § 2122 of the Code of Civil Procedure declares-that a certiorari cannot be issued in either of the following cases:

First. To review a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed.

Second,. When the determination can be adequately reviewed by an appeal to a court or some other body or officer. The importance of these provisions herein is demonstrated inasmuch as-the board of revision and correction might have sustained the objections made before the assessors, and no further action would have been required by the relators. That the board did not do so does not affect the principle; indeed we are not supposed to be ad

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vised of that as a subsequent incident. It is enough that they had the power to do so. The certiorari having been obtained, therefore, after the list already mentioned was sent to the board of revision and correction, and before any action upon it by that body, there was no final determination of the objections made, and which, as we have seen, the board of revision had the power to consider, revise and remit, and in relation to which they had the power also to subpoena and examine witnesses. Independently, however, of these provisions, though quite conclusive, title 3 of. the consolidation act, in reference to vacating and modifying assessments imposed for local improvements, provides by a series of sections for the vacation óf any assessment, or to remove a cloud upon the title. See §§ 897 to 914 inclusive. Section 897 declares substantially that for the vacation of any assessment on the lots in the city of New York, the owners of property shall be confined to their remedies.

It is perhaps needless to say, the rule being so well settled as to be very familiar, that the court only interferes by certiorari when there is no other remedy. There are, therefore, herein two points presented by the respondent which seem to be fatal.

First. That there was no final determination, and,

Second. That there existed another remedy to which the relators could have resorted. There is still, however, a further reason, and that is that the only evidence on which the relators seek to avoid the assessment is contained in the affidavit of their attorney, and which is on information and belief. The evidence on which the board of assessors acted is, therefore, not before thé court.

Entertaining these views, there is but one disposition to make of this writ, and that is to dismiss it, with costs.

Van Brunt, P. J., and Daniels, J., concur.