I think there can be no doubt, from the papers annexed to the return, that a gross fraud was perpetrated on the owners of the land assessed in this case, and that the same was done with the connivance of the authorities having the direction of this matter. If the parties injured could be relieved, such relief should be afforded. But I am of the opinion that the decisions of the courts have been such as to prevent the relief sought in this form of proceeding:
1. Because on the common-law certiorari only the record can be the ground of proceeding, and the affidavits and other papers annexed to the return are not properly before the court.
2. Because the cause of decision in the courts has been to deny relief upon certiorari to review assessments for local improvements, leaving the party to his more appropriate remedy by action for the injury.
I should not adopt this rule if I was not controlled by the decisions. It leads to a much speedier remedy to proceed by certiorari, and prevents a multiplicity of action. If however the contrary rule is adopted, it had better be by the general term on appeal, than by a single judge at special term.
I suppose the parties aggrieved may have relief from the fraud in an equitable action, in which all the matters can be fully examined.
For these reasons I think the application must be denied.
Mo costs are awarded to either party.