People ex rel. Hagerty v. McClellan

94 N.Y.S. 1107 | N.Y. App. Div. | 1905

Miller, J.:

The relator appeals from an order of the Special Term quashing a writ of certiorari issued to review the acts of the respondents in respect to the matter of providing for a bridge approach and laying- out a public place. The appellant insists that a motion to quash cannot be made at Special Term, and that in any event such a motion could not be made before the return. The motion is made solely upon the writ on the ground that it is insufficient in law and that certiorari does not lie to review the acts complained of. If this appeared upon the face of the writ, neither the petition nor return was necessary, and the court having the power to grant the writ undoubtedly had the power to quash it. It is also objected that the notice of motion to quash is signed by the corporation counsel as such and not as attorney for the respondents. This objection appears to be frivolous, especially as the corporation counsel is made by section 255 of the charter (Laws of 1901, chap. 466) the attorney and counsel for the city and the various departments, boards and officers, and is specially charged with the duty by section- 973 of instituting proceedings to acquire title to land for street openings, etc.,, upon the direction of the board of estimate and apportionment. Section 970 of the charter authorizes x the city of ¡New York “to acquire title for the use of the public to all or any of the lands required for streets, parks, approaches to bridges,” etc., and by the sainé section it is provided: “ The board of estimate and apportionment is authorized to direct the same to be done whenever and as often as it shall deem it for the public interest's so to do.” While it does not clearly appear by the ivrit whether such a direction has actually been given, it is clear that the acts sought to be reviewed relate to the giving of such direction, and for the purposes of this appeal we may assume that it has been done. The writ alleges that the respondents acted illegally, arbitrarily and against the Constitution of the United States. The statute does not provide the requisites for action by' the board of estimate and apportionment. The Legislature has simply clothed the. board with the power to direct that title to land- required for the public purposes enumerated be taken “ whenever and as often as it shall deem it for the public interests so to do.” The proceedings subsequent to such direction are carefully regulated and guarded" by the statute, and in such proceedings every person affected has an ■ opportunity to be heard. - (See § 973 et seq.) The appellant insists that the writ could have issued at common law, and that, therefore, it is authorized by subdivision 2"of section 2120 of the Code of Civil Procedure. No authority applicable to the question here has been cited in support of that proposition, and we have been able to find none. Had the statute prescribed any formalities necessary to be observed before the giving of such a direction, the regularity of the proceedings could undoubtedly be inquired into by certiorari, but as-the statute has absolutely vested discretion in the board of estimate and apportionment without prescribing the manner in which that discretion shall be exercised, its exercise is. not the subject of review by certiorari.

It is claimed that the acts sought to be reviewed constitute a taking of the petitioner’s property without due process of law,, but no •reason is assigned in support of- this assertion. The act of the board constitutes merely an authority to institute the proceedings; thereupon the corporation counsel is required,, up on notice given in the manner prescribed, to make application to the Supreme Court for the appointment of commissioners of estimate and assessment. On . such an application the parties interested are entitled to be heard. In case the court appoint commissioners, their proceedings are carefully prescribed and their determination is subject to confirmation by the court.

As it clearly appears, therefore, upon the face of the writ that no question for review was presented, a motion to quash- before the court issuing the writ was proper, and the order should be affirmed, with ten dollars costs and disbursements.

Hirschberq, P. J., Bartlett and Jerks, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.