99 N.Y.S. 348 | N.Y. App. Div. | 1906
This is a proceeding to review certain acts of the board of super-, visors of the county of Westchester,, to wit, the passage of a resolution reviving the distinction between town and county poor, pursuant to section 134 of the Poor Law (Laws of 1896, chap. 225), .the levy and assessment upon the town of Cortlandt of, taxes for the. support of the poor of said town, pursuant to sections 9 and 10 of said chapter. 225 of the Laws of 1896.
The point is made by the defendants that the relator'has mistaken his remedy. The question respecting what acts can be reviewed by certiorari has been considered so recently and exhaustivély by the Court of Appeals as to require no further discussion in this court;"' (People ex rel. Schau v. McWilliams, 185 N. Y. 92.) In the case cited, the distinction between a judicial act, as the term is frequently used,.and the act of an. officer or body performed in the discharge-pf a judicial function, is clearly pointed out, and the authorities upon the. question carefully reviewed by Chief Judge Cullen. -It only remains to determine under what head the acts sought to be reviewed are to be resolved. It is plain that in passing the resolution sought to be reviewed, and in apportioning the taxes among the different towns, the board of supervisors discharged legislative and not judicial functions. (People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468 ; People ex rel. O'Connor v. Supervisors, 153 id. 370.) The' relator relies upon cases .which sustain a review by certiorari at the instance of a taxpayer of an assessment of " his property made .-by local assessors,, but in such . case, the proceeding .is judicial in its character, the party is entitled to a notice and a hearing, and may present evidence upon which the assessors are- required to.act as, judges.
Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred. .
Writ of certiorari dismissed, with costs.
