47 N.Y.S. 1023 | N.Y. App. Div. | 1897
This matter comes before us on the return to a certiorari issued to review the determination of a justice of this court in proceedings taken under section 3 of chapter 685 of the Laws of 1892, known as the “General Municipal Law.” The proceedings were instituted upon the affidavits of residents and freeholders of the village of Plattsburg, claiming that the officers of such village were unlawfully expending the moneys raised by taxation therein, and asking that the financial affairs of the village and the accounts of such officers be investigated. The justice has made a decision adverse to such officers. They now seek to review such determination, and the first question presented to us is whether the writ of certiorari can properly be issued for such a purpose. Section 2121 of the Code of Civil Procedure provides that a writ of certiorari cannot be issued to review the determination of a judge of a court of record in an action or special proceeding. And, if the proceeding under this statute is to be deemed a “special proceeding,” it is clear that the writ has been improvidently granted, and that it cannot be effectual to review the determination complained of. The proceed
Upon the argument it was asked that, if this court should reach that conclusion, the relators should be allowed to annex to this record a notice of appeal, which it is claimed has been served in this proceeding, and that we should decide the case upon its merits, as if such appeal was now before us. This record does not contain any evidence that such an appeal has been taken, and no consent that we so consider the matter is given on the part of the taxpayers. The relators are in no condition to ask now for a decision upon an appeal which the record before us does not show is pending, and which very clearly has never been brought to a hearing before us.
The certiorari in this matter must be quashed, upon the ground that it is prohibited by the Code in such a proceeding, with $50 costs and disbursements against the relators. All concur.