131 Misc. 672 | N.Y. Sup. Ct. | 1928
This is a statutory proceeding in which definite questions are reviewable. (Civ. Prac. Act, § 1304.) There is no authority for the consideration of the equitable defenses for which an examination is asked. The office of the writ is “ the review of all questions of jurisdiction, power and authority of the inferior tribunal to do the acts complained of, and all questions of regularity in the proceedings, that is, all questions whether the inferior tribunal has kept within the boundaries prescribed for it by the express terms of the statute law or by well-settled principles of the common law.” (People v. Board of Assessors, 39 N. Y. 81, 88.) The Legislature has not yet turned this proceeding into the form of an equitable action in which questions of waiver, laches and estoppel are reviewable. (Civ. Prac. Act, § 1304.) The language at the end of paragraph 5 of the order of August 24, 1927, must be construed to refer to other acts and proceedings of the town officers relating to the subject to be reviewed.
The Appellate Division may, in its discretion, quash the writ and remand the petitioners to an equitable action in which the alleged defenses may be set up. (People v. Stilwell, 19 N. Y. 531.)
The motion for examination is denied and respondents' time to file a return is extended to March 15, 1928.
So ordered.