82 N.Y. 275 | NY | 1880
We are of opinion that the General Term, instead of reversing the judgment of the Special Term on the merits, should have reversed it without considering the merits, on the ground that upon the facts appearing on the return, no relief could be granted. It appears by the return to the certiorari, that prior to the issuing of the writ the board of supervisors had issued its warrant to the tax collector of the town of Flushing, for the collection of the annual tax levied by the board, which included the items for the payment of the installment of principal and interest to become due during the year 1879, on the bonds of the town, issued to pay for the improvement in question. The collector's warrant was issued December 21, 1878, and the order to show cause why the writ of certiorari should not issue was made January 6, 1879, and the writ was issued February 4, 1879, on which day judgment was entered, directing that the sum of $11,180, inserted in the tax-roll of the town of Flushing, for the payment of principal and interest on the bonds, be stricken therefrom, and that the warrant for the collection thereof be amended accordingly.
When the writ was issued the tax-roll was not in possession of the defendant. The jurisdiction of the supervisors and the power of the board to change the roll terminated with the levy *278
of the tax, and the delivery of the tax-roll and warrant to the proper town officers. Neither the tax-roll nor warrant were before the court when the judgment was rendered on the return of the writ, and a direction to the board of supervisors to correct the roll or amend the warrant was wholly unavailing. It must be assumed that in due course the tax has been collected. The relator cannot in this proceeding be relieved from the alleged illegal tax, and we think the judgment of the General Term should be modified so that it shall direct a reversal of the judgment of the Special Term, and that the writ be quashed. (People v.Supervisors of Allegany, 15 Wend. 211; People ex rel. v.Supervisors of Queens, 1 Hill, 195; People v. Mayor, etc.,
2 id. 10; People ex rel. v. Delaney,
All concur, except RAPALLO, J., absent.
Judgment accordingly.