Case of Fifty-First Street

3 Abb. Pr. 232

• Court: New York Supreme Court
• Decided: September 15, 1856
• Status: Published

Opinion

Whiting, J.

This is a motion for the allowance of a common law certiorari. The proceeding sought to be removed is the assessment made by the Common Council for regulating, grading, setting curb and gutter, and flagging sidewalk in Fifty-first street. . The writ is asked for by only one of the persons assessed.

On the argument I was strongly in favor of allowing the writ, but on more mature reflection, I am constrained to follow the cases of The People v. Supervisors of Allegany (15 Wend., 198), and The Matter of Mount Morris Square (2 Hill, 16), which are decisive against the allowance. In the latter case Justice Co wen says, “We ought not to allow this writ when-assessments of taxes or awards of damages are in question, which affect any considerable numb.er of persons. If there be a want of jurisdiction even in the judicial act sought to be reviewed, or,' in other words, if there be an excess of legal power by which any person’s rights may be injuriously affected, an action lies; and it is much better that he should be put to this remedy than that the whole proceedings should be arrested, and perhaps finally reversed, for such a cause.” In the cáse before me the errors complained of may be fully examined in an action ; and I deny the writ because I believe the court would quash it upon the coming in of the return, which was done in the case of The People v. Supervisors of Allegany. Motion denied, without costs.