Whitney v. Mayor of New York

1 Paige Ch. 548 | New York Court of Chancery | 1829

The Chancellor :—It is not necessary for me to express an opinion whether there is any legal objection to the assessment against the complainant’s property. If it is illegal, he has a full and perfect remedy at law, and this is not the proper tribunal for him to apply to for redress. In Mooers v. *Smedley, (6 John. Ch. Rep. 28,) this court decided that the review and correction of errors, abuses and mistakes in the exercise of the powers of inferior and subordinate jurisdictions, and in the official acts of public officers, belonged exclusively to the Supreme Court. That such a power exists in that court has been repeatedly recognized by the judges thereof. (2 Caines’ Rep. 169; 16 John. Rep. 50; 1 Wendell, 288.) And that the complainant may correct any illegal proceedings under the 175th section of this act, by a certiorari, was expressly decided by that court, in the case of Le Roy and others v. The Mayor, &c. (20 John. Rep. 430.) The injunction must therefore be dissolved. The application to dismiss the bill for want of prosecution is not the regular mode of getting rid of the suit, under the rule of June, 1828. The proper course is for the defendant to set it down on bill and answer, if the complainant neglects to file a replication. The motion to dismiss is only allowed where there other defendants, against whom the cause is not in readiness for hearing, in consequence of the neglect of the complainant to expedite the proceedings against them. By the English practice, the motion to dismiss was merely for the purpose of expediting the proceedings of the complainant; and there is no ground for such an application on the part of the defendant, where either party is at liberty to proceed in the cause. At law, if the plaintiff neglects to bring the cause to trial, judgment as in case of non-suit may be granted. But the defendant cannot move for such a judgment in replevin, because he has an equal right with the plaintiff to carry down the cause for trial.

The motion to dismiss the bill is denied.