People Ex Rel. Davis v. . Hill

53 N.Y. 547, 1873 N.Y. LEXIS 440

Opinion

Rapallo, J.

The order of the General Term in this case was that the writ of certiorari be quashed and the proceedings dismissed. The return showed that the proceedings sought to be reviewed took place in 1870. The writ of certiorari was not applied for until 1872, and in the mean time stock had been subscribed and bonds issued. It was within the discretionary power of the court below to refuse or quash the writ on account of this delay, without regard to the merits of the case. The court have a discretion to grant or withhold a common-law certiorari. (Matter of Mount Morris Square, 2 Hill, 28, per Cowen, J.) The allowance of the writ rests in the sound discretion of the court, and unreasonable delay in applying for it may be ground for refusing it or for quashing it even after a hearing on the return. (People v. Supervisors of Allegany, 15 Wend., 198 ; People v. The Mayor, 2 Hill, 12,13.) In the case last cited it was said that a case could rarely happen in which it would be proper to allow a certiorari after the lapse of more than two years. But I apprehend that there is no fixed limit as to the time, and that circumstances might exist under which a shorter delay would be deemed unreasonable. This court held in People v. Stilwell (19 N. Y., 531, 533), that where the court below, in the exercise of its discretionary power, quashed the writ after a hearing upon the merits, this court would not review the decision.

Although the relator may be without other remedy, I cannot find any authority for holding that that circumstance deprives the court below of its discretionary power to quash the writ for delay. In the cases where we have entertained these appeals, the court below had passed upon the merits of the ease, and questions of law were presented. (People v. Knowles, 47 N. Y., 420.)

The appeal must be dismissed, without costs.

All concur.

Appeal dismissed.