In re Herman

Appellate Division of the Supreme Court of New York

In re Herman

62 N.Y.S. 44, 47 A.D. 640

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 9, 1900

StatusPublished

This text of 62 N.Y.S. 44 (In re Herman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Herman, 62 N.Y.S. 44, 47 A.D. 640 (N.Y. Ct. App. 1900).

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Opinion

WILLARD BARTLETT, J.

The record in this case discloses no legal reason why the respondent should not have his writ of mandamus. In Re Ludlow St., however, which we have decided at the' present term (62 N. Y. Supp. 42), it appears that a serious objection [45]*45■exists to the validity of the street-opening proceeding on the part of the New York.Central & Hudson River Railroad Company, which that corporation has not yet been in a position to raise in such a manner as to obtain a judicial determination thereon. If the proceeding should hereafter be adjudged invalid at the instance of the railroad company, upon an application to set it aside or otherwise, the city of Yonkers would be placed in an embarrassing situation in ■case assessment bonds for the improvement had already been issued and sold. While an order for a mandamus must be upheld on the papers here before us, we think the direction that the writ issue immediately should be changed so as to direct that it issue 60 days after the date of our decision, with leave to the city of Yonkers to •apply to reopen the application, and oppose it on new papers, in case the street-opening proceeding shall in the meantime be set aside.

Order modified accordingly, and as modified affirmed, with. $10 costs and disbursements to the respondent. All concur.

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WILLARD BARTLETT, J.

The record in this case discloses no legal reason why the respondent should not have his writ of mandamus. In Re Ludlow St., however, which we have decided at the' present term (62 N. Y. Supp. 42), it appears that a serious objection [45]*45■exists to the validity of the street-opening proceeding on the part of the New York.Central & Hudson River Railroad Company, which that corporation has not yet been in a position to raise in such a manner as to obtain a judicial determination thereon. If the proceeding should hereafter be adjudged invalid at the instance of the railroad company, upon an application to set it aside or otherwise, the city of Yonkers would be placed in an embarrassing situation in ■case assessment bonds for the improvement had already been issued and sold. While an order for a mandamus must be upheld on the papers here before us, we think the direction that the writ issue immediately should be changed so as to direct that it issue 60 days after the date of our decision, with leave to the city of Yonkers to •apply to reopen the application, and oppose it on new papers, in case the street-opening proceeding shall in the meantime be set aside.

Order modified accordingly, and as modified affirmed, with. $10 costs and disbursements to the respondent. All concur.

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62 N.Y.S. 44, 47 A.D. 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-herman-nyappdiv-1900.

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