97 N.Y.S. 272 | N.Y. App. Div. | 1905
Lead Opinion
We think this proceeding must be dismisséd upon the ground that the act sought to be reviewed was not a judicial act which could be reviewed by certiorari. The function of the writ of certiorari is to review a determination of an inferior court or officers exercising judicial powers. In People ex rel. Corwin v. Walter (68 N. Y. 403) Judge Allest, in delivering the opinion of the court, said: “ The writ lies only to inferior, courts and officers exercising judicial powers affecting the-property or rights of the citizen, and is directed to the court, magistrate or board, exercising such powers, requiring them to send into the Supreme- Court from which (the writ issues, the proceedings in a cause or- matter already terminated.” In People ex rel. Second Avenue R. R. Co. v. Board of Comrs. (97 N. Y. 37) the relator sought to review the action of the department of public parks indhe city of Hew York ,in consenting to the-construction of an elevated bridge across the Harlem river at the e'nd of Second avenue. In that case the court says : “ It is difficult to conceive in what respéct the respondents acted judicially in giving their consent to the erection of, the bridge in question, or in making the contract with the Suburban Rapid - Transit Company. If they had the power claimed, to give the permission and enter into the contract, they acted as public agents, in the exercise of delegated governmental powers, and their action was not subject to review on certiorari. * . * * A common-law Certiorari lies only to
Neither the act of the Special Deputy Commissioner of Excise nor of the superintendent of buildings of the city of New York was in its nature judicial or had any relation to judicial functions. Under chapter 697 of the Laws of 1905 the superintendent of buildings was to inspect and make a written report as to whether the premises described complied with the local laws of the city of New York and the laws of the State in relation to hotels. This was purely an administrative function and not in its nature judicial; no notice was required to be given, no hearing had, no evidence taken, and nothing involving the nature of a judicial proceeding. If the superintendent of buildings reported to the Special Deputy Commissidner of Excise that the building did not comply with the local laws of the city of New York and tlie'laws of the State in relation to hotels, the statute directed the Special Deputy Commissioner of Excise to cancel and revoke the liquor tax"certificate. There was nothing in this proceeding that involved a judicial act, nothing even resting in his discretion, as the command of the Legislature was imperative.
There being no proceeding that could be reviewed by this writ the writ must be dismissed, with fifty dollars costs and disbursements.
O’Brien, P. J., and Clarke, J., concurred.
Concurrence Opinion
Í concur in the result, but upon the. ground that the statute is constitutional. • If it were unconstitutional I think there would, be a remedy by certiorari. I know "of ho other way to correct the récord and restore the liquor tax certificate and preserve the licensee’s right to sell liquor in the meantime, and to obtain a rebate if lie should desire to surrender the certificate.
Patterson, J., dissented.
Writ dismissed, with fifty dollars costs and disbursements.