People ex rel. Stevenson v. Gilon

13 N.Y.S. 455, 36 N.Y. St. Rep. 1004, 59 Hun 623, 1891 N.Y. Misc. LEXIS 1181

• Court: New York Supreme Court
• Decided: February 11, 1891
• Status: Published

Opinion

Brady, J.

The board of assessors are appointed under section 865 of the consolidation act, and who, on completing the assessment lists, transmit them, as required by the statute, to the board of revision and correction. That board or a majority are obliged by section 867 of the consolidation act to perform all powers and duties relative to the revision, correction, and confirmation of assessment lists specified in the various laws relating to assessments in the city of New York, other than assessments made by commissioners appointed by a court or justice. They have the power and it is their duty to consider on the merits all objections made to any assessment, and to subpoena and examine •witnesses in relation thereto, if necessary, and to confirm said assessments, ■or to refer the saíne back to the board of assessors and correction in such respects as they may determine. The importance of these provisions is apparent from the fact that section 2122 of the Code of Procedure declares that a •certiorari cannot be issued in either of the following cases: First, to review a.determination which does not finally determine the rights of-the parties with respect to the matter tobe reviewed; second, when the determination can be, adequately reviewed by an appeal to a court or some other body or officer. The importance of these provisions herein is demonstrated, inasmuch as the board of revision and correction might have sustained the objections made before the assessors, and no further action would have been required by the relator. That the board did not do so does not affect the principle; indeed, we are not supposed to be advised of that as a subsequent incident. It is -enough that they had the power to do so. The certiorari having been obtained, therefore, after the fist already mentioned was sent to the board of revision and correction, and before any action upon it by that body, there was no final determination of the objections made, and which, as we have seen, the board of revision had the power to consider, revise, and remit, and in relation to which they had the power also to subpoena and examine witnesses. Independently, however, of these provisions, though quite conclusive, title 3 of the consolidation act, in reference to vacating and modifying assessments imposed for local improvements, provides, by a series of sections, for the vacation of any assessment or to remove a cloud upon the title. See sections 897-914, inclusive. Section 897 declares substantially that, for the vacation of any assessment on the lots in the city of New York, the owners of property shall be confined to their remedies. It is perhaps needless to say, the rule being so well settled as to be very familiar, that the court only interferes by certiorari when there is no other remedy. There are therefore herein two points presented by the respondent which seem to be fatal: First, that there was no final determination; and, second, that there existed another remedy, to which the relators could have resorted. There is still, however, a further reason, and that is that the only evidence on which the relators seek to avoid the assessment is contained in the affidavit of his attorney, and which is on information and belief. The evidence on which the board of assessors acted is therefore not before the court. Entertaining these views, there is but one disposition to make of this writ,- and that is to dismiss it, with costs.

All concur.