60 N.Y.S. 127 | N.Y. App. Div. | 1899
On the 2d day of May, 1898, the relator presented to the president and'board of trustees of the village of Port Jervis an account for fees for services rendered in executing commitments of the police justice in the manner prescribed by chapter 529 of the Laws of 1896. This bill the president and board of trustees refused to audit and allow, and the relator' made an. application to the Supreme Court for a writ of certiorari to review the act and determination of the defendants. An order issued out of the court, and the defendants duly made return to the same. Thereafter the relator made application for an order directing a further return to the original writ, and upon this order issuing, the defendants made such further return. .
Defendants’ counsel urgés that these proceedings should be dismissed upon the grounds that the writ of certiorari is not the relator’s proper remedy; that the village is not a party, and that in no event is the village liable to the relator. Section 2122 of the Code' of Civil Procedure provides that “ Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued in either of the following cases: 1. To review a determination which does not finally determine the rights of the parties, with respect to the matter to be reviewed,” etc. The charter of the village of Port Jervis (Laws of 1896, chap. 529, § 1) provides that the village shall be authorized to sue and be sued. It also provides in sections 91 and 92 of the same act for the auditing of bills against the village, but “No such account or claim shall be audited or allowed by the trustees unless it shall be * * * accompanied with an affidavit of the person claiming,” etc.; and it is further provided
The proceedings should be dismissed, with costs.'
All concurred.
Writ of certiorari dismissed, with ten dollars costs and disbursements.