40 N.Y. 154, People ex rel. Western Railroad Corp. v. Board of Assessors of City of Albany

Citation:40 N.Y. 154
Party Name:THE PEOPLE on the relation of THE WESTERN RAILROAD CORPORATION, Appellants, v. THE BOARD OF ASSESSORS OF THE CITY OF ALBANY, Respondents.
Case Date:March 20, 1869
Court:New York Court of Appeals
 
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Page 154

40 N.Y. 154

THE PEOPLE on the relation of THE WESTERN RAILROAD CORPORATION, Appellants,

v.

THE BOARD OF ASSESSORS OF THE CITY OF ALBANY, Respondents.

New York Court of Appeal

March 20, 1869

This cause was argued Jan. 14th, 1869.

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COUNSEL

John H. Reynolds, for the appellants, upon the point, that upon a return to a writ of common law certiorari, the court may review the merits, cited Swift v. The City of Poughkeepsie (37 N.Y. 511); People v. Van Alstyne (32 Barb., 131); Susquehanna Bank v. Supervisors of Broome County (25 N.Y. R., 312); Baldwin v. The City of Buffalo (Id., 380); Heywood v. City of Buffalo (4 Kern., 534.)Upon the point, that the fund, in question, was not personal property "within this State," within the meaning of the assessment laws, he cited Lord v. Arnold (18 Barb., 105); Hoyt v. Commissioners of Taxes (23 N.Y. 224, 240); Story Confl. of Laws, 309 to 314; 2 Kent., 406; 23 N.Y. R., 240; Comstock, J.)

Amasa J. Parker, for the respondents, to the point, that a common law certiorari brings up for review only the question of jurisdiction, cited, People v. Mayor of New York (2 Hill, 9); Haviland v. White (7 How. Pr., 154); Corlies v. Newbold (7 Id., 166); Ex parte Mayor of Albany (23 Wend., 277); Dillon v. Board of Police (15 Abb., 167); Morewood v. Hollister (2 Seld., 312, and cases cited); Allyn v. Commissioners of Schodack (19 Wend., 342.)

OPINION

DANIELS, J.

It will be unnecessary to determine, whether § 6, of chapter 176, of the Laws of 1851, as amended by § 5 of chapter 536, of the Laws of 1851, repealed § 9 of the act relating to assessments in the city of Albany. (1 R. S., 5th ed., 912, § 21; Id., 979, § 9.) For the affidavit, presented to the respondent, in support of the application, made for the correction of the assessment, was accepted and received as the proper statutory proof required to be made in the case. If any objection to it, in that respect, had been intended, it was the duty of the respondent to make it, at the time when the affidavit

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was presented, and when the relators could have obviated it by supplying, in its place, the evidence required by the statute, if, in truth, this was not of that description. Justice and fairness required as much as that, on the part of the respondent, and the obligation would, doubtless, have been carefully observed, if any such objection had been intended. But, it is evident from the action taken by the respondent, in the disposition of the application, that no such objection was intended to be made; for the affidavit was received and passed upon by it, and the application was finally rejected, not on the ground that the affidavit was either informal, or insufficient proof, but on the ground that it "gave no good reason in law for striking the assessment off the roll, and said application was accordingly refused." This is the statement which the respondent has made, in the return, for the purpose of exhibiting the reason that, in its judgment, justified the conclusion to which the board arrived. It was, in effect, that the facts disclosed by the affidavit, assuming them to have been accurately stated, were, legally, insufficient to entitle the relator to be relieved from the assessment. That, therefore, and that alone, is the point presented by the case for the consideration and decision of this court. And this point may be properly examined and decided under the powers exercised by courts upon writs of certiorari at common law, as the office and authority of such writs have been defined and settled by the direct adjudication of this court upon that subject. (Mullins v. People, 24 N.Y. 399, 404-5; Smith v. City of Poughkeepsie, 37 N.Y. 511, 515-16.)

The point thus stated arises...

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