116 N.E. 890 | NY | 1917
We think the order of the Appellate Division vacating the order granting the writ of certiorari and dismissing the writ erroneous. Assuming without deciding that the act of L. Tannenbaum, Strauss Co., Inc., in instituting the proceeding which resulted in the issuance of the writ was in violation of section 2-a of the Business Corporation Law (Cons. Laws, ch. 4) and section 280 of the Penal Law, and that the act of the attorney who made the motion which resulted in the issuance of the writ of certiorari was unauthorized, such acts in view *483 of the other undisputed facts were no reason why the relator should be deprived of his right to review the assessment. He was about to depart for Europe and believing that his property had been illegally assessed, left the matter with L. Tannenbaum, Strauss Co., Inc., to take such lawful steps as it might deem advisable to have the assessment corrected. There is nothing in the record to indicate that he did not act in the utmost good faith in employing such corporation or that he had any reason to believe that it was not authorized to do such acts as might be necessary for that purpose. It is true that he did not employ the attorney who subsequently made the application for the writ of certiorari, but after his return from Europe, the writ in the meantime having been issued, he ratified such employment and formally retained him in the matter. Under such circumstances it would be unjust to hold that because the corporation was unauthorized to act in the first instance, or the attorney was unauthorized to procure the issuance of the writ, the relator should be punished by denying him any relief whatever.
The order appealed from should, therefore, be reversed, with costs to the appellant in the Appellate Division and this court, and the order of the Special Term affirmed.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur; CHASE and HOGAN, JJ., dissent.
Order reversed, etc.