Noyes v. City Council

116 Mass. 87, 1874 Mass. LEXIS 26

Opinion

Gray, C. J.

This case differs from that of Powers v. City Council of Springfield, ante, 84, in an essential point. The order of the city council, lowering the grade of Chestnut Street, was not void, but voidable only, and cannot be avoided except by writ of certiorari, and upon the petition of a party entitled to relief. It appears by the report of the justice of this court before whom the case was heard, that this petitioner, with full knowledge of the proceedings before the city council and its order thereon, has allowed the work to proceed under that order so far, that it has been nearly completed, and the street cannot be restored to its original condition without the expenditure of a large sum of money. His petition for a writ of certiorari to quash that order, being addressed to the discretion of the court, should not therefore be granted. Whately v. County Commissioners, 1 Met. 336. Eaton v. County Commissioners, 7 Gray, 109, 112. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491. Petition dismissed.