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A proceeding by certiorari to review the action of tax assessors in refusing to exempt property must be under the act of 1880, chap. 269, and not under the general provisions of the Code of Procedure. People ex rel. Church of the Holy Communion v. Assessors of Greenburgh, 106 N. Y. 671 (1887); affirming 43 Hun, 637 (1887).

The failure of a railroad company to furnish the statement to the assessors required by 1 R. S. 414, § 2, does not deprive it of a right to a review of the assessment under Laws 1880, chap. 269. People ex rel. Sodus Bay, etc., R. R. Co. v. Cheetham, 45 Hun, 6 (1887). And see People ex rel. Dunkirk, etc., R. R. Co. v. Cassity, 46 N. Y. 46 (1871).

By the terms of an act by which a district of country was annexed to an adjoining city (Laws 1870, chap. 139, as amended by Laws 1877, chap. 402), it was provided that the farming lands lying within said district, and used exclusively as such, should not be assessed at a valuation greater than the assessed valuation of similar farming lands in the town adjoining. Held, that the legislature had power to pass such an act, and that an assessment at the valuation of city lots, while the land was used as provided in the act, was error, reviewable on certiorari, although such assessment was not greater than the actual value of the property. People ex rel. Van Rensselaer v. Weaver, 41 Hun, 133 (1886).

Remedy of the act of 1880 is applicable to assessments made in the city of New York, notwithstanding section 821 of the Consolidation Act. People ex rel. Equitable Gas-Light Co. v. Barker, 81 Hun, 22 (1894); reversed on other grounds in 134 N. Y. 94.

The determination of the assessors, based upon conflicting evidence as supported by some evidence, no erroneous theory of assessment having been adopted, will not be disturbed in the Court of Appeals. People ex rel. Hecker-Jones-Jewell Milling Co. v. Barker, 147 N. Y. 31; S. C., 69 N. Y. St. Repr. 337; reversing 86 Hun, 148 (1895).

Who May Review.

In no proceeding is one to be heard who complains of a valuation which, however erroneous it may be, charges him only with a just proportion of the tax. If his own assessment is not out of proportion, as compared with valuations generally upon the same roll, it is immaterial that one neighbor is assessed too much and another too little. People ex rel. Gerry v. Tax Commrs. of New York, 5 N. Y. St. Repr. 311 (1886).

The right to have an assessment reviewed on certiorari rests only with the party aggrieved. Id. See, also, People ex rel. Wright v. Chapin, 104 N. Y. 369 (1887).

Where a person aggrieved by an assessment, which is alleged to have been illegal, applies to assessors for relief, and a hearing is had before them, a fact which was conceded by them upon the hearing, as for example that the petitioner was the committee of a lunatic, cannot come up for review on a certiorari brought to review the decision actually made by the assessors. The committee of a lunatic whose real property has

been illegally assessed is a 'person aggrieved" by the action of the assessors, within the meaning of section 1, chap. 269 of the Laws of 1880, and, under the power and authority given to such committee by section 2340 of the Code of Civil Procedure, he may sue out a writ of certiorari to review the action of the assessors. People ex rel. Canaday v. Williams, 90 Hun, 501 (1895).

Court May Require Notice.

Requiring notice on granting a writ of certiorari to review an assessment is discretionary with the court. Id.; People ex rel. Ulster, etc., R. R. v. Smith, 24 Hun, 66.

Alleged Errors to be Raised Before Taxing Officer.

The writ is not available to a taxpayer, who has omitted to avail himself of the statutory complaint of grievance to the assessors. Matter of Winegard, 78 Hun, 58; S. C., 28 N. Y. Supp. 1039 (1894).

Certiorari to review an assessment under Laws 1880, chap. 269, does not lie unless the relator applies to the assessors and submits to examination on grievance day. Matter of Corwin, 64 Hun, 167; S. C., as People ex rel. Corwin v. Assessors, etc., of Middletown, 46 N. Y. St. Repr. 148; 19 N. Y. Supp. 142 (1892).

Certiorari will not lie unless the relator appeared and objected before the assessors on "grievance day." People ex rel. W. U. Tel. Co. v. Dolan (Sp. T.), 32 N. Y. St. Repr. 599, 603 (1890).

A claim to exemption upon which the proceedings are based must have been called to the attention of the tax commissioners. People ex rel. Eagle Fire Ins. Co. v. Commrs. of Taxes (Sp. T.), 56 N. Y. St. Repr. 641; S. C., 26 N. Y. Supp. 941 (1894).

A person taxed in the city of New York who has not applied to the commissioners for a reduction of his assessment cannot have it reviewed upon certiorari. People v. Wall Street Bank, 39 Hun, 525 (1886).

Previous application to the tax commissioners to correct is a condition precedent to certiorari under act of 1880. People ex rel. Mut. Union Tel. Co. v. Commrs. of Taxes and Assessments, 99 N. Y. 254 (1885).

Although personal appearance before the assessors on grievance day by a person seeking reduction of his assessment may be proper, it is not in all cases an absolute prerequisite, and where appearance is made by attorney, without objection, who admits the existence of all the material facts with respect to the applicant's property, and personal appearance is not asked for, or required, a proper foundation is laid for the review of the assessment by certiorari. Matter of Corwin, 135 N. Y. 245; S. C., 48 N. Y. St. Repr. 233 (1893).

Omission to appear before assessors on grievance day may be excused in a proper case, and is not a condition precedent to the prosecution of a writ of certiorari. People ex rel. v. Duguid, 68 Hun, 243; S. C., 52 N. Y. St. Repr. 190; 22 N. Y. Supp. 988 (1893).

That neither the petition nor writ show that the relators had appeared before the assessors, or made any objection while the assessments were open, is no ground for quashing. People ex rel. Grace v. Gray, 45 Hun, 243 (1887).

A person, aggrieved by an assessment, is not precluded from reviewing the action of the assessors, because, when examined by them upon “grievance day," she refused to answer a question as to how many and what amount of United States bonds she had bought during the year preceding the one for which the assessment was levied, when the issue made by the petition and return was whether she had personal property to the amount of $50,000, in the village of Clinton, which was the subject of taxation. People ex rel. Dwight v. Platt, 92 Hun, 349 (1895).

Petition.

It is not necessary that all the persons in whose behalf the petition is presented should subscribe to and verify it. The petitioners may act through attorneys, whose authority will be presumed until the contrary is shown. People ex rel. Adams v. Coleman, 41 Hun, 307 (1886).

Under Laws 1880, chap. 269, requiring the relator in his petition to state the grounds of irregularity, omission to specify the objection that the officer before whom the assessors swore to the roll, was not authorized to administer an oath, waives it. People ex rel. W. U. Tel. Co. v. Terney, 57 Hun, 357; S. C., 32 N. Y. St. Repr. 605; 10 N. Y. Supp. 940 (1890).

Where taxpayers of a city seek to review an assessment by means of a writ of certiorari, and their petition alleges, in the language of the statute (Laws of 1880, chap. 269, § 1), that the assessment complained of is erroneous by reason of overvaluation, or is unequal in that it has been made at a higher proportionate valuation than other real property on the same roll by the same assessors, the petition is sufficient to confer jurisdiction upon the court. The petition, in such a matter, is in the nature of a pleading, and it is necessary to state only the conclusions of fact, without stating the evidence necessary to support such conclusions. Matter of Nisbet, 3 App. Div. 171 (April, 1896).

Parties to Proceeding.

It is not proper to make the clerk in whose office the original assessment-roll is on file, a party for the purpose of his making the returns. Winegard v. Promer (Sp. T.), 5 Misc. 54 (1893); affirmed 78 Hun, 58.

On certiorari under the act of 1880, the town clerk is not a necessary party. Winegard v. Promer, 78 Hun, 58; S. C., 60 N. Y. St. Repr. 507; 28 N. Y. Supp. 1039 (1894).

The supervisor of the town is not a necessary party to certiorari to review an assessment. People ex rel. Ulster, etc., R. R. Co. v. Smith, 24 Hun, 66 (1881).

It is no objection to the issuance of the writ against the assessors, that the roll had already passed into the possession of supervisors.

People ex rel. Paddock v. Lewis, 55 Hun, 521; S. C., 29 N. Y. St. Repr. 606 (1890).

The fact that assessments have been sent to board of correction and revision forms no legal obstacle in the way of reviewing the action of the assessors, under Laws 1880, chap. 269. People ex rel. James v. Gilon (Sp. T.), 33 N. Y. St. Repr. 842; S. C., 11 N. Y. Supp. 512; reversed on other grounds in 126 N. Y. 640 (1890).

The writ to review the determination of the permanent board of directors of a city may be directed to their successors in office. People ex rel. Heiser v. Gilon, 121 N. Y. 551; S. C., 31 N. Y. St. Repr. (1890).

Under this act, the assessors are required to deliver a completed and verified roll to the town clerk, and a writ is properly directed to him to bring up the roll for review. People ex rel. Ulster, etc., R. R. Co. v. Burhans, 25 Hun, 186 (1881).

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Findings of Fact not Reviewable.

On appeal to this court, in proceedings by certiorari under chap. 269, section 1, Laws 1880, to review an assessment, findings of fact determining inequality of the relator's assessment may not be reviewed. The only inquiry is to whether there was legal evidence tending to the conclusion arrived at and whether any errors of law affected the decision. People v. Christie, 115 N. Y. 158.

Cases in General Under Act of 1880.

People ex rel. Leonard v. Commrs. of Taxes, 90 N. Y. 63, 65 (1882); People ex rel. Jefferson v. Smith, 88 id. 576 (1882); People ex rel. Mills W. W. Co. v. Forrest, 29 Hun, 548 (1883); People ex rel. Chamberlain v. Forrest, 30 id. 240 (1883); People ex rel. Ogdensburg R. R. v. Pond, 13 Abb. N. C. 1; 18 Week. Dig. 456 (1882); S. C., 92 N. Y. 643.

251. Allowance of writ of certiorari.-Such petition must be presented to a justice of the supreme court or at a special term of the supreme court in the judicial district in which the assessment complained of was made, within fifteen days after the completion and filing of the assessment-roll and the first posting or publication of the notice thereof as required by this chapter. Upon the presentation of such petition, the justice or court may allow a writ of certiorari to the officers making the assessment, to review such assessment, and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days, and may be extended by the court or a justice thereof. Such writ shall be returnable to a special term of the

supreme court of the judicial district in which the assessment complained of was made. The allowance of the writ shall not stay the proceedings of the assessors or other persons to whom it is directed or to whom the assessment is delivered, to be acted upon according to law.

[Revisers' Note.-L. 1880, chap. 269, §§ 1-3; R. S., 8th ed., 1114, without change of substance.]

The bill as first reported required the application to be made to a Special Term only. This was changed by the committee of the senate, so as to allow application to be made to a justice of the Supreme Court of the district, as well, which wa a restoration of the provision of Laws 1880, chap. 269, § 2. The committee also added the provision that the writ should be returnable to a Special Term of the judicial district.

The only condition to the allowance of the writ is, that it shall be allowed within fifteen days after the completion and delivery of the assessment-roll and the posting or publishing notice thereof as required by the act. These are facts which can be disputed by evidence, in the face of a return to the contrary. People ex rel. Grace v. Gray, 45 Hun, 244 (1887).

Where a notice is given the completion and delivery of the roll, the time to make application under the act of 1880 is unlimited. Matter of Corwin, 135 N. Y. 245; S. C., 48 N. Y. St. Repr. 238 (1892).

The assessors are the proper parties to make the return, and the town clerk is not a proper party to the writ. People ex rel. West Shore R. R. Co. v. Pitman, 9 N. Y. St. Repr. 469 (1887).

The assessors are proper parties to the writ, although they had completed their assessment-roll and delivered it to the comptroller. People ex rel. Warren v. Carter, 47 Hun, 446 (1888).

The writ of certiorari must require a return to be made within not less than ten days from its issue, but this need not be from the date of its service. People ex rel. Ulster, etc., R. R. Co. v. Smith, 24 Hun, 66 (1881).

It seems that a writ of certiorari under Laws 1880, chap. 269, should designate the particular Special Term at which return shall be made. People ex rel. Paddock v. Lewis, 55 Hun, 521; S. C., 29 N. Y. St. Repr. 606 (1890).

The proceeding under the act of 1880 should be made returnable at a regular Special Term and not at chambers. People ex rel. Urquhart v. Barker (Sp. T.), 4 Misc. 504 (1893).

The authority given for a stay by section 2131 of the Code is inapplicable to this proceeding in consequence of the prohibition contained in the act of 1880. People ex rel. Manhattan Ry. Co. v. Coleman, 1 N. Y. Supp. 112. See, also, People ex rel. New York El. R. R. Co. v. Coleman, id. 551.

The provisions of section 2132 of the Code of Procedure do not govern the return of a writ of certiorari issued under Laws 1880, chap. 269.

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