People ex rel. Springsted v. Board of Trustees — 49 N.Y. St. Rep. 48

Majority

p. 48

The People ex rel. Mason Springsted, Resp’t, v. The Board of Trustees of the Village of Cobleskill, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Certiorari—Code Civ. Pro., § 2125.

The provisions of § 2125 of the Code, limiting the time within which a certiorari may be granted, apply to a certiorari brought on the ground of lack of jurisdiction, as well as if brought on any other ground.

Appeal from order awarding to relator a writ of certiorari to review a certain assessment made'by the board of trustees. The assessment in question was made for a local improvement, and was finally confirmed and levied on December 28, 1891. The order granting the writ was granted April 30, 1892.

Relator claims that the board has no jurisdiction to make an assessment, as to him, because he had no land fronting upon or coming up to the street in question, but only a right of way therein.

Charles H. Holmes, for app’lt; L. W. Baxter, for resp’t.

There is but one question in this case. The order awarding a writ of certiorari, from which the appeal is taken, was not granted within four months after the assessment sought to be reviewed was confirmed and levied by the board of trustees of 4he village of Cobleskill, as required by provisions of § 2125 of the Civil Code.

The respondent insists that the assessment in question being void, never became binding or final as to him. That in fact, there being no jurisdiction, there was no assessment. That there was no record. And hence, that the provisions of § 2125, supra, do not apply.

This is not an open question. In People ex rel. Cook et al. v. Hildreth et al., 126 N. Y, 360 ; 37 St. Rep., 393 , the question of jurisdiction was raised, as will be seen by examining the points of counsel. In fact that was the only subject discussed by counsel except the question as to the four months limitation.

The court held that said four months limitation was a bar, thus determining the question involved in this case. As decided by the court of appeals in the case cited, one of the offices of the writ of certiorari under § 2140 of the Civil Code is to inquire into the jurisdiction of the body or officer making the determination which is the subject of review, and it is difficult to see why the provisions of § 2125, supra, do not apply to a certiorari brought on the ground of a lack of jurisdiction, as well as if brought on any other ground.

The order should he reversed, with costs and printing, and the motion denied, with costs.

Herrick, J., concurs.