People v. Mayor of New-York, 10 Wend. 393

People v. Mayor of New-York

10 Wend. 393 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

It is contended that a mandamus is not the appropriate remedy in this case. The proposition is, I believe, universally true, that the writ of mandamus will not lie in any case where another legal remedy exists, and it is used” only to prevent a failure of justice. By legal remedy is meant a remedy at law, and though tire party *397might seek redress in chancery, that of itself is not a conclusive objection to the application ; that may and should influence the court in the exercise of the discretion which they possess in granting the writ under the facts and circumstances of the particular case, but does not affect its right or jurisdiction. Nor does the fact that the party is liable to indictment and punishment for his omission to do the act, to compel a performance of which this writ is sought, constitute any objection to the granting of the writ. The principle which seems to lie at the foundation of applications for this writ and the use of it is, that whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoked?!» 3 Burr. 1267. 1 T. R. 404. 3 id. 651. Cowper, 378, per Buller, J. 2 Selw. Wheat, ed. 316, 317. 4 Bac. Mr. tit. Mandamus, 496. 12 Johns. R. 415. 19 id. 259. 1 Cowp. 417. Applying these principles to the application before us, I can perceive no objection to it, so far as the remedy is in question. It is the only legal remedy to which the relator can resort to enforce his rights against the corporation.

The more important question however is, has the relator established before the court a legal right to the lease demanded by him; and whether he has or not depends upon the meaning of the term months in the statute concerning the collection of taxes and assessments in the city of New-York, passed the 12th April, 1816. If it means a lunar month, the title is established ; if calendar, it fails. It is contended by the counsel for the relator, that conceding the sale to be irregular, he is still entitled to the lease, as the statute is only directory ; and several supposed analogous cases have been cited, as 8 Johns. R. 361, and 13 id. 97; but these cases relate to sales by sheriffs, where the purchaser is protected by statute against any irregularity in the proceedings of the officers. 1 R. L. 504, § 13,14. 2 R. S. 369, § 40. 2 R. L. 517, § 17. 1 R. S. 412, § 81. 8 Wendell, 661. Were it not for the statute, the purchaser would be bound to shew the regularity of the sale under which he claims. In this case the authority of the corporation to sell and convey the -land, in default of non-payment of the tax assessed, rests wholly upon the statute, and unless its provisions have been strictly complied with, *398the purchaser would take no title under their conveyance, were jt not for a provision in the act of 1816, making the lease conclusive evidence as to the regularity of the proceedings of the corporation on a sale of the premises embraced in it. r 1 , Should we compel the execution oí the lease, the purchaser s title might be protected ; but we are not inclined to exert this high power of the court to give strength and validity to a title which appears clearly defective upon the merits, and which, without this statutory support, cannot be sustained.

Does the word months in the statute mean lunar or calendar time ? The general rule which must be applied to this case (now altered by 1 R. 8. p. 606, § 4,) is, that unless there is something in the statute indicating that the legislature intended calendar time, this term must be construed to mean a lunar month, within the cases of Snider v. Warren, 2 Cowen, 518, and Parsons v. Chamberlain, 4 Wendell, 512. I am of opinion there is enough in the statute authorizing such conclusion ; it allows to the owner of the land two years from the time df the sale, within which he may redeem, and requires the corporation to give public notice at least six months before the expiration of that period for four weeks. Now, as calendar time is used by the legislature in fixing the period for redemption, it is a just and reasonable inference that they intended to use it in fixing upon the division or point of time specifying the notice to be given to the owners to redeem. As the one period in express terms is calendar time, and the six months immediately succeed it, and were intended to include a part of it, it should be construed to mean the same, otherwise we must believe the legislature intended to fix the different periods by different calculations of time in the same breath, and on the same subject matter, and without any conceivable purpose.

Motion for peremptory mandamus denied.