Opinion
June 14, 1912.
J.J. Kramer, for the appellant.
James D. Bell [ Sanders Shanks and Archibald R. Watson with him on the brief], for the respondent.
The learned court at Special Term has refused to grant a peremptory writ of mandamus to compel the respondent to receive the taxes and to cancel the record of sale, and it is sufficient reason for affirming the order that the petition does not show conclusively that the petitioner has a clear legal right to the relief which he demands. The petition alleges on information and belief that "during the years 1866 to 1883, inclusive, the said property was owned by a non-resident of the tax district in which said lands were located," and then points out objections to the assessment and subsequent sale. But if the property was not owned by a non-resident, many of the objections would be without force, and a peremptory writ of mandamus can issue properly only where the legal right is clear and distinct.
The relator has a perfect remedy through an equitable action, where all of the questions can be tried out, and a peremptory writ ought not to issue upon a petition based on information and belief. An alternative writ issued in the first instance in People ex rel. Cooper v. Registrar of Arrears ( 114 N.Y. 19), and upon the facts being established a peremptory writ was issued, but here the petitioner demands relief upon the facts which he has stated, and these facts are not so certain that a court would be justified in granting the writ.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., BURR, THOMAS and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.