86 N.Y.S. 900 | N.Y. App. Div. | 1904
The Special Term quashed the writ, of certiorari On the ground that no complaint was made on grievance day, and hence there .was not compliance with section 250 of the Tax Law (Laws of 1896, chap. 908) which provides that the petition must show that “ application has heen made in due time to the proper officers to correct such assessment.” The learned counsel for the appellant contends that such an application and an allegation thereof were unnecessary. But the disposition that I am about to make of this appeal makes a decision upon that point for the present at least mnnecessary.. The petition, which being like unto a pleading need but contain conclusions of fact without supporting evidence (Matter of Corwin, 135 N. Y. 245, 252), shows that the assessors on or about August 1, 1903, completed the roll and caused notice thereof to be advertised, fixing August 18, 1903,
The board, pleading affirmatively, admits the appearance of counsel on the nineteenth of August, and assert that he was informed that the' time for the presentation of protests had passed, and that it had no authority to receive or to entertain complaints. The notice for presentation itself is not in the record, and the board does not deny or traverse the allegation of the petition that August eighteenth was named in the notice as the first day upon which objections would be heard. It does not deny that when the petitioner appeared on the following day it w'as in session, with all of
Under sections 35, 36 and 38 of the Tax Law (as amd. by Laws of 1901, chap. 358) the assessors have the time intervening the third Tuesday of August and the fifteenth day of September to revise and finally to complete their. rolls. Section 250 of the Tax Law does not prescribe that the application must be made on the first day named in the notice, or on the third Tuesday of August, or on any specified day. It reads: “ Such petition must show that application has been made in due time to the proper officers to correct such assessment.” As August eighteenth was the earliest day when such application could be made (§ 35), it cannot be presumed that an application made on August nineteenth was not made in due time so far as the opportunity for hearing and correction is concerned. Section 36, which authorizes adjournments from time to time, is almost conclusive upon this point. By the statute the third Tuesday of August is simply made the day when the assessors will meet “ to review their assessments.” (§ 35.) There is no provision of the law that complaints must be made upon that day or be forever barred, while section 36 prescribes that the assessors shall meet at that time and at the place specified in the notice of completion of the assessment roll to hear and determine all complaints, and for that purpose may adjourn from time to time. It may well be that when the board adjourned on August eighteenth, to come together on August nineteenth, it assumed that perforce
None of the cases cited by the learned counsel for the respondents is an authority that under this law the complaint must be made upon the third Tuesday of August, if at all. In Matter of Winegard(78 Hun, 58) the relator was held foreclosed by the nature of the objections made to the town assessors (p. 61). And such was the case in Hilton v. Fonda (86 N. Y. 339, 345). In People ex rel. Buffalo, etc., R. Co. v. Duguid (68 Hun, 243) there was no appearance, but the petitioner was held excused from laches because one of the assessors, upon the statement that the petitioner could not appear, had assured him that he would be heard upon an adjourned day, which assurance, the court say, was in accord with the letter. and spirit of the statute “ to adjourn from day to day as may be necessary to hear and determine * * * such complaints.” In People ex rel. Mutual Union Tel. Co. v. Comrs. of Taxes (99 N. Y. 254) the books were closed by the statute on Hay first, and the relator made no objection until June sixth. In People ex ret. Western Union Tel. Co. v. Dolan (126 N. Y. 166) the court simply refers to its decision in People ex rel. West Shore R. R. Co. v. Adams (125 N. Y. 471) wherein it Was said: “ This court held in the case of People ex rel. Tel. Co. v. Commissioners of Taxes
And further, if the notice fixed August eighteenth as the jvrst day, then the petitioner, aside from any question of statutory assurance, in view of the provisions of section 36 {supra), and of the absence of specific day designated by statute, was lulled to sleep by the form of the notice. The facts are much more in its favor than those which moved the court in People ex rel. Buffalo, etc., R. Co. v. Duguid (supra).
The order should be reversed, with ten dollars costs and' disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.
The third Tuesday in August.— [Rep.
People ex rel. Mutual Union Tel. Co. v. Comrs. of Taxes.
See chap. 269.— [Rep.