The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23

The objection D. en- Lahcnj 70 0le00B S06 q0eo-
ton Of jurisdiction at all and whether for the
parties. they ought not to Be deemed to have
sui mitteo to he juri. diction Of the court 1t
would &c. M that the Legislature inteuded that
thu denurrant should distinctly apprise MS adj
yersary of the precise questiOn IL was intended
TO discuss. and that the trial Of an issue Of law
should be confined to the very ground Of de-
murrer assigned. And the enumeration Of the
want of jurisdiction being one Of the ak causes
specifically mentioned, 1t should not be avAiled
of az q ground OF demurrer unless the demurrer
itself asHgns It spt cial]y.
1t is true that under section l40 the objection
to the jurisdiction If the court is not to be
deemed waived by the omission to set 1t up,
either by demur, err or even by answer. Still
it by no means follows that it can be raised on
the argument Of demurrer that assigns DIFF
fereIt cause
Whether if not 80 set up the objections should
only be permitted on the final hearing--or
whether and how far it can be urged in any
ard what other stages Of the cause, the code
does not provide But it is at least doubt
full whether on the argument Of q demurrer,
&c. &. specify ing for cause, " that several eau
ses of action have been improperly joined,'O
the demurrant should be permitted to depart at
all from the very ground upon which the de-
murrer is based.
The Judgment which the coutx are called up
on to give, is Judgment npo.Hie very issue
OF Law ,aised by the parties by their pleadings.
But the question OF jurisdiction was discussed
at length on the argument and without objec-
ton on the part OF the plaintiff. Probably upon
view OF the subject which may be sound, viz.
that the want OF jurisdiction OF the cause OF
action may be urged in any and all stages OF an
action, whatever may be the formal question
before the court though the form Of the judg-
mept upon the issue OF law presented, might be
somewhat embarrassing Ii the court are OF
opinion that the cause Of demurrer assigned
has no foundation, how can they give Judg-
ment for the demufrant upon that issue
Possibly counsel suppose that notwithstand-
ing the provisions requiring the demurrant to
specify want of jurisdiction when that is the
ground Of demurrer, yet that If it appears on
the argument that the cause is not one Of equi-
ty cognisance, the plaintiff has not shown that
in this action and upon this complaint he has o
cause OF action upon which the court can give
him any relief. This is somewhat Naturalization
construction Of the meaning Of the case, not
very satisfactory to my mind. The power Of
the court over the subject, when the jurisdiction
of the court is voluntarily submitted to, cannot
be questionable has often been exercised in
this State and relief given, as win appear
hereafter.
] DO not however wish to be understood as
giving any decided opinion uponthe construction
of The Code, or rpon the rule to be observed in
this particular. The counsel for both parties
have concurred in submitting the question Of
Jurisdiction as properly before me under their
demurrers, and l may therefore properly dis
pose Of the case upon that question.
And under the course of decision which has
been had in this State in like cases, the prece-
dents do not furnish very satisfactory guide
to a result. Upon a review Of the subject am
nevertheless brought to the conclusion that the
plaintiff has mistaken his remedy, and that no
amendment can be made which viii entitle him
to any relief OF the nature sought by the pre-
sent complaint.
Briefly the reasons for this conclusion are,
that by a wrong rule as is complained Of here,
no irreparable mischief is threatened-no cloud
ia thrown over the title to any real estate which
court of equity may properly be prayed 70
remove--and the remedy is ample at law with
out invoking the powers Of the court as a court
Of equity, which alone are appealed to in this
action.
To trace the course of judicial decision IN
this State, and point out the mode in the va
rious exigencies which may arise, in which IN
illegal assessment for taxes may be set aside
or corrected, or its collection restrained, or
the wrong done thereby be redresacd, is not an
easy labor. Upon a cursory inspection of the
but apprehend that, in truth, there exists,
Notwithstanding limitations of doubt thrown
out in some Of the opinions, full remedy at law
in all cases in which personal estate only is af-
fected thereby.
The mode of rectify ing such assessment is by
affidavit, while the assessment roll remains in the
hands OF the assessors; (Revised Statutes 1928.
Laws Of 1850, chapter l20); the notice they
are required to publish to enable persons as
sessed 10 make such correction I; the review
Of such assessments by the Board of Assessors,
or Commissioners of Taxes, on the application
of any person conceiving himself aggrieved.
(Revised Statutes 1913, and Laws Of 1850, chap
ter i20.) The further power Of the supervisors
10 correct the rolls and remit taxes, {p. o95,
Laws Of lS44, chapter $50 sec. g. and Laws Of
1850, chapter 1907 need only be mentioned.
In many respects, no doubt, their acts are final
and conclusive. Ii their proceedings are regu-
lar, and the act within the scope Of tleir juris-
diction, following the directions Of the statute,
= no more error in the valuation Of the property
Of u taxable inhabitant, or in the exercise Of
their discretion, or in determining the weight
or spfllciency of evidence laid before them,
can, apprehend, he reviewed by any tribur al.
But, II tLey. impose a tax upon property
which Is not by law taxable, or assess person
who Is not liable to assessment, or If, by reason
OF errors in making up the assessment without
comply ing with the essential requirements OF
the statute, or make an illegal apportionm mt
of The taxes imposed, and whether the illegS lily
OF the acts appears on the face Of their pro-
cecdiDgs, or arises from extrinsic facts to be
proved debars the proceedings themselves,
have no doubt a review may be had, or redress
may he obtained.
Whether certiorari will lie, and such review
be had thereon, and the extent Of such review
has been much discussed; If, however, review
be had by certiorari, II can only reach such il
LOCALITIES as are apparent upon the proceed
ings themselves, (the People u.s. the Mayor, &c. Of
New York, . Hill, 3, and matter OF ii /, nut
Morris square, 2 Hill. 27-S, and cases ctedt
and it seems questionable whether after the as
sessment rolls have gone into the hands OF the
collector, aud the warrant has issued, any
review by certiofari would avail to stay thc
collection Of the tax.
That the Supreme Court have power 10 grant
such writ, and thereupon to review the pro
ccedipgs, is. however, settled. Such writ wai