
    Matter of the Application of Daniel B. Stow et al. for a Writ of Certiorari against The Common Council of the City of Kingston.
    (Supreme Court, Ulster Special Term,
    December, 1898.)
    Assessments — Certiorari to review the action of a common council granted, although the warrants for collection had passed into the hands of the city treasurer.
    Where the charter of a city (Laws of 1896, chap. 747) provides that, when any special assessment shall be finally confirmed, the certificate thereof, together with a duplicate, shall be filed with the city clerk and that both shall be deemed originals, to either of which shall be annexed the warrant for collection, the fact that the certificate and warrants for collection have passed into the hands of the city treasurer before a writ of certiorari, to review the alleged erroneous action of the city common council in confirming the assessment, was granted, affords no reason for denying the writ upon the ground' that the power of the common council has been spent, as the record-is in legal contemplation, still under the control of the common council.
    This is an application for a writ of certiorari to review the action of the common council of the city of Kingston, confirming a special assessment made pursuant to the provisions of the consolidated charter of that city (Chap. 747, Laws of 1896), upon the ground that the city officers have not conducted their proceedings in accordance with the statute,, in that they have erroneously included in the assessment items not properly chargeable against the property affected by the improvement.
    George R. Adams, for petitioner and application.
    John W. Searing, corporation counsel, for city.
   Clearwater, J.

The affidavits filed by the corporation counsel state that the common council, on the 21st day of October, confirmed the special assessments involved in this application, and that on the next day warrants for the collection of the assessments under the seal of the city, and the signature of the mayor and city clerk, were issued and delivered to the treasurer, commanding him to collect the amount thereof. The learned corporation counsel thereupon makes the preliminary point that the certificate and warrants having passed into the hands of the treasurer before a writ of certiorari was obtained, it is now too late to compel the common council to reverse its action, even if it have committed error, for the reason that its power is spent.

The charter of the city provides that when any assessment of the character here involved shall be finally confirmed, the certificate thereof, together with a duplicate, shall be filed with the city clerk, and both shall be deemed originals, to either of which shall be annexed the warrant for the collection of the assessment. It makes the city clerk the custodian of all the records, books and papers of the city, declares his office a town clerk’s office for designated purposes, and provides that he shall act as the clerk of the common council.

The record, therefore, is or legally should be still under the control of the common council.

The Code of Civil Procedure makes a writ of certiorari a state writ, which can be granted only at a term of the Appellate Division of the Supreme Court or at a Special Term thereof. As the Appellate Division and the Special Term are not always in session, it is manifest that if the contention of the corporation counsel be correct, the common council can always by acting with the celerity it did in this instance prevent any review of its action by certiorari, no matter how grossly unjust such action might be. It is highly improbable that the legislature intended by the charter to confer such absolute power upon a body of such limited jurisdiction.

The case of People ex rel. Porter v. Tompkins, 40 Hun, 228, relied upon by the corporation counsel, was disapproved by the Court of Appeals in the Matter of Corwin, 135 N. Y. 245, in so far as it may be construed to hold that the writ could not issue after the assessors had parted with the roll, and is in conflict with the well-reasoned opinion of Mr. Justice Ward, in People ex rel. W. N. Y. & P. R. R. Co. v. Adams, 88 Hun, 122.

It is important that every citizen should be afforded protection against possible oppressive action of municipal bodies, and while the contention that the common council could have assessed the entire cost of this improvement upon the property of the relators instead of 75 per cent, thereof, may be tenable, it is not to be assumed that that body would, in this instance, have departed from the practice of many years. That, however, is a question which can be more fully considered hereafter, and without, therefore, discussing the merits of the case, the preliminary objection is overruled, and a writ of certiorari is granted.

Writ of certiorari granted.  