
    PEOPLE ex rel. COPCUTT v. BOARD OF HEALTH OF CITY OF YONKERS.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Certiorari to Municipal Board -Legality of Board.
    The legality of the municipal board cannot be questioned on certiorari to review its proceedings, since such writ assumes the legal existence of the board.
    2. Same—City of Yonkers.
    The charter of the city of Yonkers, (Laws 1881, c. 184,) tit. 9, § 1, provides that the supervisor and five other officers named shall constitute the board of health of such city. Laws 1892, c. 54, (amending title 1, § 1, and title 2, § 1, of such charter,) § 1, creates a fifth ward in such city. Section 2 provides for the election of two aldermen from each ward. Section 3 provides for election districts. Section 4 provides, inter alla, for the election of a supervisor from each ward. Helé, that the ward supervisors provided for by such amendment are not members of the board of health, and the constitution of such board was not changed by such act, since it did not purport to amend title 9, § 1, which prescribes who shall constitute such board, nor title 3, § 16, which provides that “the supervisor shall be a member of the board of supervisors of the county, * * * and shall have the powers and discharge for the city the duties of supervisors of towns,” etc.
    Certiorari by the people of the state of New York on the relation of John Copcutt to review the action of the board of health of the city of Yonkers in enacting an ordinance declaring certain mill ponds owned by relator in sucli city to be public nuisances, and directing the issuance of a warrant authorizing the proper officer to remove and abate the same.
    Proceedings of the board affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    R. E. & A. J. Prime & Burns, for relator.
    James M. Hunt, for defendant.
   DYKMAN, J.

This is a proceeding by certiorari to review the action of the board of health of the city of Yonkers" in enacting the ordinance of April 5, 1893, by which certain dams and water ponds of the relator were declared to be nuisances detrimental to the public health, and directed to be suppressed and abated. The proceedings are challenged for irregularity. It is the claim of the relator that the board of health was not legally constituted at the time of the passage of the resolution of April, 1893. In the case of People v. Parker, 117 N. Y. 86, 22 N. E. Rep. 752, it was decided that the function of a certiorari is to review the judicial action of inferior officers and tribunals. It assumes their existence, and the fact of official proceeding, but draws in question the legality of such action. It brings up the record, and is heard and decided upon the return, which is taken as conclusive, (People v. Fire Com’rs, 73 N. Y. 437,) and that states that the resolution was adopted. Independent of this rule of law, however, the objection is baseless. The board of health of the city of Yonkers was created by the city charter. Section 1, tit. 9, c. 184, Laws 1881. The first part of that section is this:

“The mayor, the supervisor, the president of the common council, the president of the board of water commissioners, the president of the board of police, and the health officer, shall constitute the board of health of the city of Yonkers.”

That made six members of the board, and four of those six were present at the time of the action which is under review. The point made by the relator is based upon chapter 54, Laws 1892. That act amended two sections of the charter of the city of Yonkers. Prior to the passage of the act of 1892 there had "been four wards in that city. The act of 1892, by section 1, created a fifth ward. By section 2 that act provided for the election of two aldermen from each ward, including the new fifth ward. Section 3 provided for election districts; and section 4 provided, among other things, for the election of a supervisor from each of the live wards of the city; and the claim of the relator is that each of. those supervisors are members of the board of health of the city. Prior to the passage of the act of 1892 there had been but one supervisor for the entire city, and that supervisor was a city officer, and not a ward officer. The act of 1892, which is an amendment to the city charter, only amended section 1 of title 1 and section 1 of title 2 of the city charter. It did not attempt to amend section 1 of title 9, which prescribes the constitution of the board of health, and the officers which shall constitute the same. Our conclusion, therefore, is that the organization and constitution of the board of health remains as it was under the charter act of 1881, composed of six members only. Neither did the act of 1892 amend section 16 of title 3 of the charter, which is as follows:

“The supervisor shall be a member of the board of supervisors of the county of Westchester, and shall have the powers and discharge for the city the duties of supervisors of towns, except as otherwise provided in this act. He shall receive the compensation allowed by law in like manner as supervisors of towns in said county.”

With this section 16 standing unamended, it is very clear, under section 1 of title 9 of the charter that the board of health of the city of Yonkers was at the time of the passage of the ordinance under review composed of not more than six members.

Upon the merits the case is plainly with the defendant. Although the proceedings under review related to the fifth and.sixth water power, yet it was agreed that the testimony taken in an action tried at the special term between these same parties, in Westchester county, should be considered in evidence in this proceeding, and that, in connection with the testimony returned by the board, shows that all the ponds are foul receptacles of filth and putrefaction. They are foul and polluted to an extent which is shocking to the sense and dangerous to health and life. They have received the condemnation of the local and state boards of health, and the court has held them to be dangerous public nuisances. The claim of the relator that the ponds have ceased to be offensive or dangerous since the large mills ceased to drain therein, in the summer of 1892, is unsupported by testimony or reason. It is true some witnesses so testified in the trial at special term, but their testimony was very unsatisfactory, and in some cases suspicious, and it was completely overthrown by the general weight of evidence. Moreover, it became quite plain that the alkalies and other chemicals which were emptied into the ponds from the factories tended rather to correct the impurities than to aggravate them. The views expressed in the opinion delivered at the special term and printed in this record are applicable to this case, and may be considered as adopted here without repetition. The proceedings of the board of health should be affirmed, with costs. All concur. 
      
       The opinion referred to is that of Mr. Justice Dykman, in Board of Health v. Copcutt. See 24 N. Y. Supp. 625.
     