Scudder v. Mayor of New York — 86 N.Y. Sup. Ct. 613

Majority

p. 613

Hewlett Scudder and Others, Appellants, v. The Mayor, etc., of the City of New York, Respondent.

Judgment affirmed, with costs.

This suit is brought to restrain New York, owned by plaintiffs, for an unpaid assessment for a local improvement. The complaint was dismissed upon the grounds: JPirst, that the assessment was void upon its face; and, second, that the remedy by injunction has been taken away by statute. The facts appearing bring this case clearly within the authorities of Sixth Avenue R R. Co. v. The Mayor ( 63 Hun, 271 ) and People ex rel. Consolidated Gas Co. v. Myers (65 id. 14), which are decisions of this court, and, therefore, controlling. It was suggested upon the argument that these cases were questioned or overruled by some later decisions m the Court of Appeals, and reference was made to the case of People ex rel. Martin v. Myers

p. 614

( 135 N. Y. 465 ). We are unable to understand how this contention can be sustained in the face of the language of the opinion, which, among other cases, cites, with approval, People ex rel. Consolidated Gas Co. v. Myers (supra). The judgment should, accordingly, be affirmed, with costs.

Present—O’Brien, Follett and Parker, JJ.

Cases cited

People ex rel. Martin v. Myers 135 N. Y. 465 N.Y. 1892-10-11 p. 614