People ex rel. Adams v. Coleman

New York Supreme Court

People ex rel. Adams v. Coleman

48 N.Y. Sup. Ct. 307, 2 N.Y. St. Rep. 616

DecidedJune 15, 1886

StatusPublished

This text of 48 N.Y. Sup. Ct. 307 (People ex rel. Adams v. Coleman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Adams v. Coleman, 48 N.Y. Sup. Ct. 307, 2 N.Y. St. Rep. 616 (N.Y. Super. Ct. 1886).

Pincite

Opinion

Daniels, J. :

The writ was issued to review the legality of an assessment made for the purpose of taxation upon the shares of the shareholders of the Merchants’ National Bank of the city of New York. They are about 800 in number, and the petition was subscribed by Nelson J. H. Edge for himself and all the other petitioners, and it was verified by him. It was also subscribed by Burrill, Zabriskie & Burrill, attorneys for the petitioners. The application to quash and dismiss the writ was made upon the ground that it could not be issued in this manner for the benefit of petitioners who did not themselves subscribe the petition. But section 1 of chapter 269 of the Laws of 1880, under which the petition was presented and the writ was issued, does not require that all the persons in whose behalf the petition may be presented shall subscribe and verify it. It permits all persons who may be affected in the same manner by the assessment upon the same roll to unite in the same petition, and to obtain the writ of certiorari for their joint as well as several benefit, and that may be done by the representations of one petition, the truth of which may be verified by either of the petitioners. The act requires no more than that, and the court, therefore, has no authority for imposing any further obligation in this respect upon the petitioners. Neither does it require in terms, nor by reasonable implication, that the petition shall be signed by each of the petitioners acting individually for himself or herself, but its provisions will be satisfied where, as in this case, they are represented by attorneys acting in their behalf. What they may do for themselves they may do through the intervention of attorneys acting under their authority. And where attorneys subscribe a petition as this has been subscribed, it is to be assumed that they have not done so without the authority of the petitioners, but rather that they have obtained such authority before subsci’ibing the petition, in such a manner as imports the delegation of the authority to do so to the attorneys. In this respect the proceeding is very much the same as the commencement of a suit in a court of law or equity, where the complaint is subscribed by the attorney or attorneys for the plaintiff. It is there assumed to have been regularly done under the authority of the -party who is represented; and if that is not the case, it devolves [309]*309upon the person alleging the fact so to be, to establish it by proof before the proceeding can be held to be irregular, or the complaint or petition be set aside. That was not done in this case, but the application was made upon the petition itself and its verification by one of the petitioners. It could not be allowed to succeed without assuming, when the fact was not established by proof, that the attorneys were acting for and endeavoring to represent petitioners from whom they had received no authority. That could not regularly be done, especially as it appeared from the petition that it was impracticable to prove this signing and verification by each one of the shareholders.

The order which was made should be reversed, with costs, and an order entered, denying the respondent’s motion. •

Brady, P. J., concurred.

Order reversed, with costs; motion denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Daniels, J. :

The writ was issued to review the legality of an assessment made for the purpose of taxation upon the shares of the shareholders of the Merchants’ National Bank of the city of New York. They are about 800 in number, and the petition was subscribed by Nelson J. H. Edge for himself and all the other petitioners, and it was verified by him. It was also subscribed by Burrill, Zabriskie & Burrill, attorneys for the petitioners. The application to quash and dismiss the writ was made upon the ground that it could not be issued in this manner for the benefit of petitioners who did not themselves subscribe the petition. But section 1 of chapter 269 of the Laws of 1880, under which the petition was presented and the writ was issued, does not require that all the persons in whose behalf the petition may be presented shall subscribe and verify it. It permits all persons who may be affected in the same manner by the assessment upon the same roll to unite in the same petition, and to obtain the writ of certiorari for their joint as well as several benefit, and that may be done by the representations of one petition, the truth of which may be verified by either of the petitioners. The act requires no more than that, and the court, therefore, has no authority for imposing any further obligation in this respect upon the petitioners. Neither does it require in terms, nor by reasonable implication, that the petition shall be signed by each of the petitioners acting individually for himself or herself, but its provisions will be satisfied where, as in this case, they are represented by attorneys acting in their behalf. What they may do for themselves they may do through the intervention of attorneys acting under their authority. And where attorneys subscribe a petition as this has been subscribed, it is to be assumed that they have not done so without the authority of the petitioners, but rather that they have obtained such authority before subsci’ibing the petition, in such a manner as imports the delegation of the authority to do so to the attorneys. In this respect the proceeding is very much the same as the commencement of a suit in a court of law or equity, where the complaint is subscribed by the attorney or attorneys for the plaintiff. It is there assumed to have been regularly done under the authority of the -party who is represented; and if that is not the case, it devolves [309]*309upon the person alleging the fact so to be, to establish it by proof before the proceeding can be held to be irregular, or the complaint or petition be set aside. That was not done in this case, but the application was made upon the petition itself and its verification by one of the petitioners. It could not be allowed to succeed without assuming, when the fact was not established by proof, that the attorneys were acting for and endeavoring to represent petitioners from whom they had received no authority. That could not regularly be done, especially as it appeared from the petition that it was impracticable to prove this signing and verification by each one of the shareholders.

The order which was made should be reversed, with costs, and an order entered, denying the respondent’s motion. •

Brady, P. J., concurred.

Order reversed, with costs; motion denied.

Cite This Page — Counsel Stack

Bluebook (online)

48 N.Y. Sup. Ct. 307, 2 N.Y. St. Rep. 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-adams-v-coleman-nysupct-1886.