People ex rel. Ackerly v. City of Brooklyn

Gilbeet, J.: No doubt a certiorari is an appropriate remedy in a case of this kind. Nor is there a statutory limitation of the time within which [57] tbe writ must be obtained. Still tbe writ is not one of right, but tbe court bas a discretion to refuse .it in any case, and to quash it where it bas been improperly issued (Magee v. Cutler, 43 Barb., 239; People v. Supervisors of Allegany, 15 Wend., 198; Susquehanna Bank v. Supervisors of Broome, 25 N. Y., 312); and tbe general rule is, that it will be quashed where it appears that application for tbe writ was not made in due season. It bas been held in many eases that it ought not to issue after tbe lapse of two years, and that when issued after that time it should be quashed. (Elmendorf v. The Mayor, 25 Wend., 693; People ex rel. Agnew v. The Mayor, 2 Hill, 13; People ex rel. Davis v. Hill, 1 N. Y. S. C. [T. & C.], 154; People ex rel. Tompkins v. Landreth, 4 id., 134; People ex rel. Corwin v. Walter, 4 id., 638.) We fully approve tbe rule on this subject laid down in these cases and tbe reasons on which it is supported. It applies emphatically to the case before us. The relators did not move until four years, lacking two days, after the ordinance for the grading and paving the street was passed, and nearly three years after the work had been performed. No objection was raised by them until the assessment for the cost of the work was put in the course of collection. They should have availed themselves of this remedy within two years after the ordinance was passed. Not having done so they must be deemed to have acquiesced in the passage of the ordinance, and so to have precluded themselves from setting up the invalidity of the ordinance to affect the assessment founded thereon. The improvement is a local one, the expense of which is properly chargeable on the property of the relators and the other adjoining owners, and it would be unjust to others to relieve them from the burden by imposing it upon the city. We think the court below very properly quashed the writ and the order must be affirmed, with ten dollars costs and disbursements. BARNARD, P. J., concurred. DyKman, J., not sitting. Order affirmed, with costs.