payers therein are the only parties that can have been aggrieved. People ex rel. Supervisors of Westchester v. Hadley, 14 Hun, 183 (1878).

Generally speaking, a trial of the merits of the cause should not be allowed otherwise than upon the return of the writ, but there are exceptions to this rule. Id.

Certiorari under Laws 1859, chap. 302, § 20, is a special proceeding in which the award of costs is proper. People ex rel. Manhattan Fire Ins. Co. v. Commrs. of Taxes, 76 N. Y. 64 (1879).

A judgment in certiorari proceedings declaring an assessment valid.— held, to estop the plaintiff seeking an injunction restraining the collection of the tax. Pacific Mail S. S. Co. v. Mayor, 57 Barb. 511 (1879).

Where the objection that the roll had passed from the hands of the assessors was not taken by motion to quash the writ of certiorari, nor raised upon the hearing,- held, that, assuming that if reasonably taken it would have prevailed, the defendants were precluded from raising it in the Court of Appeals. People ex rel. Bay State, etc., Co. v. McLean, 80 N. Y. 254 (1880); affirming 17 Hun, 204 (1879); 5 Abb. N. C. 137 (1878). The return to the certiorari by the assessors in this last case stated that the roll had been delivered to the supervisor, whereupon a supplemental writ having been issued to him he produced the roll, and the assessment was ordered by the court to be stricken off, as to which the General Term said: "We think the remedy adopted to correct the error of the assessors was the proper one." 17 Hun, 206.

Where it appeared by the return that prior to the issue of the writ the board of supervisors had issued its warrant to the tax collector, the tax-roll was no longer in its possession,- held, that the jurisdiction of the board had terminated, and that the writ directing it to correct the roll should have been quashed. People ex rel. Weekes v. Supervisors of Queens, 82 N. Y. 275 (1880).

Though where assessors have jurisdiction, and simply err in judgment, a certiorari is the proper remedy, if assessors assess the personalty of a corporation in a city other than the place designated in its certificate, and collection of the tax is coerced by levy upon its property, an action to recover back the amount is maintainable. Union Steamboat Co. v. Buffalo, $2 N. Y. 351 (1880).

The Supreme Court has discretion to withhold a common-law certiorari, and refusal of its exercise is not ground of appeal to the Court of Ap peals. People ex rel. Waldman v. Police Commrs., 82 N. Y. 506 (1880). Unreasonable delay in applying for a writ is a good ground for quashing it. Id.

Writ of certiorari should call for the record directly affecting the particular property only. People ex rel. Eno v. Tax Commrs., 10 Abb. N. C. 35 (1881).

While the allowance or refusal of the writ of certiorari will not be passed upon by the Court of Appeals, though the merits were considered below, it seems that a judgment in due form, reversing or affirming the

proceedings of the commissioners, would be reviewed on the merits on appeal to the Court of Appeals. People ex rel. Vanderbilt v. Stilwell, 19 N. Y. 531 (1859); People ex rel. Haneman v. Tax Commrs., 85 N. Y, 655 (1881). i

Where executors were duly served with notice of an assessment on the last day upon which the assessment could be made, and before the will was proved, and applied to the commissioners for a correction thereof, but stated no ground for a reduction, alleging merely that the period during which the creditors might present claims so as to enable a valuation to be made had not expired, and the estate might be greatly reduced or wholly swept away,- held, that certiorari on a denial of a reduction should be dismissed. People ex rel. Coudert v. Commrs. of Taxes of New York, 31 Hun, 235 (1883). !

Upon the first of July the property assessed had been designated as a part of Niagara park, under Laws 1883, chap. 336, and Laws 1885, chap. 182, the proceedings to acquire it had been completed, the funds provided, and the relators had an adequate and certain remedy to obtain them. A writ of certiorari running to the assessors and supervisors issued to review the assessment, but after the roll had passed from the possession and control of the assessors. Held, that the writ should be quashed, since the assessors had lost jurisdiction, and the board of supervisors could exercise only such powers as were conferred upon them by statute which did not embrace striking out an assessment. People ex rel. Porter v. Tompkins, 40 Hun, 228 (1886).

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'When it involves the inquiry whether the action and determination were legal and should be set aside or confirmed, it may be seen that the writ may be effectual after the powers of the tribunal or officers have ceased as to the matter in question, because it is a mere matter of review; but when the purpose of the proceeding is to have the direction of the court for those to whom the writ is issued, to do some act by way' of correction of an error, it must, we think, be within the power of such officer or tribunal to perform the act." Id.

Where the General Term dismissed a writ of certiorari brought by a city to review the proceedings of the board of supervisors in auditing accounts and assessing them against the city,- held, that its decision was not res adjudicata as to the validity of the assessment, since its action on the writ was discretionary, and the character of the order made was no altered by the fact that the court in its crinion examined the proceedings and considered them regular. In this case appeals to State assessors from the equalization of board of supervisors were considered. People ex rel. Supervisors of Ulster v. Kingston, 101 N. Y. 82 (1886).

Ar order of the General Term, reversing an order of the Special Term on certiorari which affirmed the proceedings of commissioners of taxes, and remanding the matter to the commissioners for further proceedings, is a final order so as to be reviewable in the Court of Appeals, since the commissioners have no authority to proceed under the order. People ex

rel. New York & Harlem R. R. Co. v. Commrs. of Taxes, 101 N. Y.

322 (1886).

An order of the General Term quashing, on the merits, a writ of certiorari applied for under the Code of Procedure, is not reviewable in the Court of Appeals. People ex rel. Mayor, etc., of New York v. McCarthy, 102 N. Y. 630 (1886).

It seems that if the court refrains from exercising its discretion under the Code of Procedure in passing upon the question presented, and quashes the writ upon the ground of a want of power to issue it, or grants it in a case not authorized by law, the order made is reviewable in the Court of Appeals. Id.

The costs of an appeal to the General Term in a proceeding to review an assessment are to be taxed in the discretion of the court under Code of Pro., § 3229, and not under section 3240. People ex rel. Warren v. Carter, 46 Hun, 444 (1887).

It is incumbent on the relator in certiorari asking to have an assessment corrected by increasing the sum to be deducted from its capital for the value of its real estate, to give evidence and furnish data showing that the actual value exceeds that fixed by the commissioners. It is not enough that the evidence suggests injustice. People ex rel. Panama R. R. Co. v. Commrs. of Taxes, 104 N. Y. 240 (1887).

On certiorari to review a decision of the State assessors it was held that under section 2140 of the Code of Civil Procedure a refusal on the part of the State assessors to receive evidence absolutely essential to the protection of either of the parties, would constitute an erroneous ruling of law, affecting the rights of the parties within subdivision 3 of that section, and that while the assessors had not full power to render a decision at their own volition, and without evidence, yet they were to some extent vested with a discretionary power to take action without restricting their proceedings to strict technical rules. The assessors admitted in evidence records of deeds of conveyances of land, the considerations in which were claimed to furnish some evidence as to the value of the land conveyed. Held, that the assessors having determined in their rules to receive such evidence, and it appearing that there was competent proof of the facts necessary to be proved to make the determination outside of this evidence, the action of the assessors should be affirmed. People ex rel. Schabacker v. State Assessors, 47 Hun, 451 (1888).

The claim that the evidence was incompetent within the decision of People ex rel. Mayor v. McCarthy, above, was overruled, and the case of People ex rel. Bd. Supervisors, 22 W. Dig. 453 (1885), was criticised and limited. Id.

2. Proceeding in Equity by Injunction and Otherwise. In the absence of fraud, equity will not interfere to relieve against a mere personal tax or assessment. Id. See, also, Heywood v. City of Buffalo, 14 N. Y. 534 (1856); Clark v. Village of Dunkirk, 12 Hun, 181 (1877); affirmed in 75 N. Y. 612 (1878).

Chancery will not refuse to take jurisdiction of a case merely on the ground that the complainant has a perfect remedy at law, if the parties have submitted themselves to the jurisdiction of equity, without objection. In this case the application was for an injunction to restrain the collection of a tax. Bank of Utica v. City of Utica, 4 Paige, 399 (1834); Farmers' Loan & Trust Co. v. Mayor, etc., of New York, 7 Hill, 261 (1843). The Supreme Court has no jurisdiction to restrain by injunction the collection of a tax irregularly or erroneously assessed, if it is not void, nor if it is void upon the face of the proceedings. Livingston v. Hollenbeck, 4 Barb. 9 (1847); Van Rensselaer v. Kidd, id. 17.

Where the plaintiff was assessed in New York for personal property, while he was a resident of and taxed in another State, upon his personal property, held, that equity had no jurisdiction to restrain by injunction the collection of the tax. Wilson v. Mayor, etc., of New York, 4 E. D. Smith, 675 (1855); reversed on another ground in 6 Abb. Pr. 6 (1857).

A court of equity has no power to restrain by an injunction, or to set aside, the proceedings of a subordinate tribunal of special jurisdiction, on the ground that it has threatened to exceed, or has exceeded its authority and powers as defined by law. So held upon an application to restrain the supervisors from collecting a tax on plaintiff's capital stock on the ground that it was assessed on a valuation greater than the amount of its authorized capital stock. New York Life Ins. Co. v. Supervisors of New York, 4 Duer, 192 (1855).

The xercise of the equity powers of the court must be invoked only to prevent multiplicity of suits, irreparable injury to the freehold, or to remove a cloud on title. Guest v. City of Brooklyn, 69 N. Y. 506 (1877); affirming 8 Hun, 97 (1876); Heywood v. City of Buffalo, 14 N. Y. 534 (1856).

In Heywood v. City of Buffalo, 14 N. Y. 534 (1856), an action in the nature of a suit in equity was brought to vacate an assessment alleged to be illegal, but if legal, constituting a lien on plaintiff's property. The action was dismissed, however, upon the ground that the complaint did not show that its invalidity did not appear on the face of the proceedings imposing the assessment.

No injunction will issue against collection of illegal tax except on recognized grounds of equity jurisdiction. Susquehanna Bank v. Supervisors of Broome, 25 N. Y. 312 (1862).

There is no more reason for entertaining a suit to restrain the collection of a tax than there would be where, in an action for the recovery of money, a party had a judgment against him upon an erroneous ruling of the law. Id.

Where the assessment complained of might have been reviewed by certiorari, or have been stricken out by mandamus,- held, that equity would not interfere. Mutual Benefit Life Ins. Co. v. Supervisors of New York, 2 Abb. Pr. (N. S.) 233 (1866).

The policy of the law is opposed to the granting of an injunction to

prevent the collection of taxes. Messeck v. Supervisors of Columbia, 50 Barb. 190 (1867).

If the proceedings of the supervisors are illegal on the face a single action at the suit of the people upon common-law certiorari can be resorted to. Id.

A number of the taxpayers of a town, having no property in common, cannot join in a suit in equity to restrain the collection of a tax imposed upon all the lands in the town. Id.

There is not such a relation between taxpayers as to enable one to sue to enjoin the collection of a tax to prevent multiplicity of suits. Messeck v. Supervisors of Columbia, 50 Barb. 190 (1867).

1

The rule denying the right to interfere by injunction to restrain the collection of a tax is one of public policy, and it is equally applicable to the case of an assessment. Western R. R. Co. v. Nolan, 48 N. Y. 513 (1872).

Except under very special circumstances the power of taxation ought not to be interfered with by injunction. Stevens v. New York & Oswego R. R. Co., 13 Blatchf. 104 (1875).

The fact that an assessment is divided into installments does not bring it within the equity powers of the court to restrain its enforcement, since a decision as to one would be effective upon all. Guest v. City of Brooklyn, 69 N. Y. 506 (1877); affirming 8 Hun, 97 (1876).

To sustain a suit in equity to restrain the collection of a tax, plaintiff must show that the action will prevent multiplicity of suits, irreparable injury to the freehold, or that extrinsic evidence is required to establish the invalidity of the lien of the assessment. Pacific Mail S. S. Co. v. Mayor, 57 How. Pr. 511 (1879).

An action to set aside taxes alleged to be illegal and a cloud upon plaintiff's title cannot be maintained where the sole ground of illegality claimed is that the law, by virtue of which the tax was imposed, is unconstitutional, since if such be the case, the invalidity of the alleged lien is apparent upon its face. Townsend v. Mayor, etc., of New York, 77 N. Y. 542 (1879); affirming 16 Hun, 362 (1878), where, however, the act complained of was expressly held to be constitutional.

An action to set aside an assessment as a cloud on title, on the ground that the act under which it is laid is unconstitutional, cannot be maintained, because if so, the act is void on its face. Wells v. City of Buffalo, 80 N. Y. 253 (1880); affirming 14 Hun, 438 (1878).

Equity will entertain a suit to set aside a tax sale void because of a statutory exemption, the tax not being void on its face. Washington Heights Methodist Episcopal Church v. Mayor, etc., of New York, 20 Hun, 297 (1880).

Since the conveyance on a sale under Laws 1880, chap. 68, § 8, would be presumptive evidence sufficient to support the title of the grantee · without proving a regular assessment, such conveyance would be a cloud on title, and a suit in equity to enjoin it on the ground of an