Bradhurst v. The President and Directors of the First Great South Western Turnpike Road Co.

16 Johns. 8 | N.Y. Sup. Ct. | 1819

Per Curiam.

There can be no doubt of the power of this Court to cause these proceedings to be brought before them. It has been frequently decided, that when the legislature confer a power on any inferior tribunal, the exercise of which may affect the rights of person or property, notwithstanding their decision may be declared to be final, yet this Court, like that of the Court of K. B., has a general superintending control over its proceedings. (2 Caines, 179. 182.) Nor can there be any doubt of our power to grant a certiorari. The parties aggrieved have a right to that writ; and if asked for, we could not refuse it. The case of The King v. Bagshaw, (7 Term Rep. 363.) is perfectly analogous to the present. Under a turnpike act, the trustees had power to turn the road through private grounds, making satisfaction to the persons interested for the damage they might sustain : And the trustees were authorized to give notice to the parties to treat, and in case of their neglect or refusal to do so, within twenty days after such notice, or in case they could not agree, to summon a jury to inquire into and assess the damages, and to order the sum so assessed to be paid by the owners, according to the verdict. The proceedings in that case having been removed to the Court of K. B. by certiorari, and it appearing that the trustees had given no notice to the party injured, the verdict, assessment of damages, and order, then were, on a rule to show cause, quashed. But the immediate, and chief purpose of the present application, is to have the certificate or execution set aside, on the ground of irregularity; and a certiorari would not be adequate to the exigency of the case, as it would not reach the execution. We must, then, have power to afford relief in some other way ; and that is on motion.

Analogous cases have come before this Court, as to proceedings under the “ Act for relief against absconding and absent debtorsand we have, on motion, afforded every rei¡ef which the case required : We have staid the proceedings, and have modified them, according to the equity and just*ce of the case. (In the matter of M'Kinley, 1 Johns. Cas. 137. Learned v. Duval, 3 Johns. Cas. 141. 3 Johns. Cas. 278. Lenox v. Howland, 3 Caines' Rep. 257. 2 Caines, 318. 1 Johns. Rep. 165. 174. 1 Johns. Rep. 248.) We have done this by virtue of our general superintending power over all such inferior jurisdictions ; and we shall exercise that power in the present case.

According to the true construction of the act, the parties were entitled to six weeks notice, in addition to the four weeks, during which the rolls were to remain for inspection. The certificate, or execution, therefore, has been prematurely issued. It was irregular, and we have power to set it aside. It would be lamentable, indeed, if we had not power over these proceedings, to prevent abuse, if any should arise, and to attain the great purposes of justice. We shall, accordingly, order a writ, or mandate, in the nature of a supersedeas to the certificate, or execution, in the hands of the sheriff, to be issued. At present, we interfere only in regard to the execution. The parties may, if they think proper, bring up the whole proceedings by certiorari.

Supersedeas awarded.