People ex rel. Andrus v. Board of Town Auditors

Herrick, J. (dissenting):

I cannot concur in the opinion of Justice Landon.

In the month of November, 1895, the relator presented a claim for services as deputy sheriff to the board of town auditors of the *280town of Ohamplain; such board disallowed his claim; thereafter the relator applied to the Special Term of this court for a writ of mandamus to compel such board to audit his claim; the court refused to grant a mandamus.

The relator thereafter made some corrections in his claim, not affecting the merits thereof, and on the 5th day of November, 1896, again presented such claim to the board of town auditors, by whom such claim was again rejected. The board of town auditors adjourned November 12, 1896, and on the 13th day of November, 1896, delivered to the clerk of the board of supervisors their schedule of audited accounts. ■ :

The relator thereafter, by a petition verified January 4, 1897, applied for a certiorari to review the action of the defendants in disallowing his claim, and this writ of certiorari was issued thereupon on the 15th day of’February, 1897.

The application for the writ of certiorari was made too late. The board had terminated its labors, and had lost jurisdiction by the delivery of the schedule of claims to the clerk of the board of supervisors. (Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. Weekes v. Supervisors of Queens Co., 82 id. 275 ; People ex rel. Rice v. Auditors, 65 Hun, 414; People ex rel. Cochran v. Board of Town Auditors, 74 id. 83.)

Section 2125 of the Code of Civil Procedure is not in conflict, with the authorities just referred to. That section provides that “ a writ of certiorari to reviewa determination must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator, or the person whom he represents, either in law or in fact.”

Prior to the enactment of the Code there was no-limitation upon the time within which a certiorari could be - issued, provided it was applied for within a reasonable time"; what was a reasonable time the court was to determine in each instance upon the particular facts of the case brought before it.

The section of the Code quoted is not an extension of the time within which the writ may be applied for, but a limitation upon the time, and its language does not necessarily conflict "with the cases above cited.

If the board or officer whose determination it is sought to review *281still has jurisdiction, then the proceedings may be commenced within four months; if it has lost jurisdiction, then it makes no difference when it is commenced, whetliér within four days or four months. The point is, that the body or officer whose action is sought to be reviewed has lost all authority over the matter, and the writ of certiorari cannot revive it.

Matter of Corwin (135 N. Y. 245) is not in conflict with the cases herein cited. That was decided under chapter 269 of the Laws of 1880, which provides the method for the review and correction of. illegal, erroneous or unequal assessments, and renders inapplicable the common law, as well as the provisions of the Code of Civil Procedure, in relation to writs of certiorari.

One of the reasons for the'passage,of chapter 269 of the Laws of 1880 was to cure the defect in the remedy by certiorari, pointed out in the case of Osterhoudt v. Rigney, that is, that the wrong cannot usually be known until it is too late to apply the remedy.” (P. 230.) But the statute did not extend the remedy to writs of certiorari generally, but only to certioraris to review illegal, erroneous or unequal assessmentsthat a writ will not issue to review the determination of a board or officer, after such board or officer has lost jurisdiction of the matter, is now too well established, it seems to me, by judicial authority, to warrant us in attempting to overturn it. This defect in the remedy can now only be cured by legislative action.

The writ of certiorari’ should be quashed, with fifty dollars costs and disbursements.

Determination reversed, with fifty dollars costs and disbursements.