People ex rel. Gas-light Co. of City of Syracuse v. Common Council of City of Syracuse

Hardin, J. — If this application had been made promptly after the report of the commissioners, or after the resolution of the common council in 1873 abandoning the proceedings, the relator, under the decisions made by the court in this district (reported in 20 Howard, 491; Morgan, J. delivering the opinion), would have been entitled to the allowance of the writ asked for. That case arose under the charter of the city of Syracuse, and seems to be in point and favorable to the relator. The principles of the case were examined by the court of appeals, in a case reported in 56 N. Y., 144, and conclusions were reached by the court of appeals that seem to weaken the case in 25 Howard as an authority. In the Matter of Syracuse, Binghamton and N. Y. R. Co. agt. Smith, it was held by Hardin, J., that until the formal report is made, filed and confirmed, the proceedings in railroad cases to acquire lands may be discontinued. That result was sustained by the general term in this department (See also Hudson R. R. R. Co. agt. Unswater, &c., 3 Sand, 690). This writ is allowable in the discretion of the court. The application for it was not made until more than twenty months after the resolution of the common council abandoning the proceedings. The delay is fatal to the relator (People agt. Seneca Common Pleas, 2 Wend., 264). In that case the delay was one year, and the writ was refused (See also 2 Johns. cases, 217; 16 Johns., 59 ; 10 Wend., 285 ; 2 Crary, Sp. Pro., 62). The writ must be refused, and the motion is therefore denied with costs.