4 Johns. Ch. 352 | New York Court of Chancery | 1820
The object of the bill is, to be relieved against an assessment made under the direction of the corporation of the city of New-York, to defray the expense of a large common sewer, in Canal-street, in the said
By the provisions of the act, it is declared to be lawful for the corporation to cause, among other improvements, “ common sewers to be made in any part of the city, and to cause estimates of the expense to be made, and a just and equitable assessment thereof, among the owners or occupants of all the houses and lots intended to be benefitted thereby, in proportion, as nearly as possible, to the advantage which each shall be deemed to acquire, and to appoint skilful and competent disinterested persons to make every such estimate and assessment; and those persons shall take an oath to make the same fairly and impartially, and having made such estimate and assessment, shall certify the same to the common council, and being ratified by it, shall be binding and conclusive upon the owners and occupants of such lots, so to be assessed.” The bill states, that all these provisions of the act have been complied with, except, that the assessment has not embraced a sufficiently extensive district of the city, to include all the owners and occupiers of lots intended to be benefitted by the sewer. It is contended by the bill, that the owners and occupiers of all the lots from whence, by the permanent regulations of the corporation, the waste water is carried off into Canal- street, are, and were intended originally to be benefitted by the sewer, and that they ought to bear a rateable proportion of its expense. There may be an error of judgment upon this point, both in the persons who made the estimate and assessment, and in the common council who heard the objections of the plaintiffs, and yet ratified the assessment; but the greater difficulty with me is as to the question of jurisdiction. I cannot find that the Court interferes in cases of this kind, where the act com
Let us examine the case ex parte Coxall, (3 Atk. 639.) which concerned the city of London tithes, and it will afford some instruction, as to the extent of equity powers. The statute of 22 and 23 Charles II. directed that certain persons in each ward and parish, should assemble in each parish, and should “ proportionally assess upon all houses, shops, warehouses, and cellars, &c. the whole respective sum by the act appointed, in the most equal way, that the said assessors, according to the best of their judgment, could
Lord Hardwické’s opinion equally applies to the case before me. If Chancery had no jurisdiction, when an assessment had not been proportionably made, in the most equal way, as the English statute directed, and if the only relief was in the review of the Lord Mayor and Court of Aider-men, whose decision was declared to be “ final and without appealwe are equally required to say that Chancery has no jurisdiction here, for an unequal assessment, because the Mayor, Aldermen, and Commonalty, in Common Council convened, are here, also, to ratify the assessment, which includes a review of it, and a power to correct it, if not duly and justly made; and their decision is declared to be “ binding and conclusive.”
In the case of The Attorney General v. The Foundling Hospital, (4 Bro. 165.) a bill was filed, and an injunction
If the plaintiffs are truly aggrieved, their remedy, if any they have, must be in the Supreme Court, by certiorari. In Wildy v. Washburn, (16 Johns. Rep. 50.) the Supreme "Court say, that whenever the rights of an individual are infringed by the acts of persons clothed with -authority to act, ánd who exércise that jurisdiction illegally, and to the injury of an individual, the person injured may have redress by certiorari. The same general jurisdiction of that Court -has been asserted and declared in other cases; (Kinderhook v. Claw, 15 Johns. Rep. 538. Lawton v. Cambridge, 2 Caines’ Rep. 179.) and seems to be -supported by the powers acknowledged to belong to the Court of K. B. A certiorari lies (1 Salk. 145. Anon. Holt, Ch. J., in 1 Ld. Raym. 469.) to that Court, to correct a mistake made by •commissioners of sewers; and though the K. B., in The King v. King and others, (2 Term Rep. 234.) refused that
Motion denied.