In re Nisbet

38 N.Y.S. 392 | N.Y. App. Div. | 1896

Brown, P. J.:

The petitioners in this proceeding are taxpayers in the city of Yofficers, and seek a review by certiorari of the assessment upon their real property.

The writ having been allowed and the return thereto having been made, the, proceedings were dismissed on the motion of the assessors, upon the ground that the petition was insufficient.

We are of the opinion that this ruling^ cannot be sustained.

The petition alleges 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, and that the petitioners will be injured by such erroneous and unequal- assessment.

This allegation is in the language of the statute (Chap. 269, Laws of 1880, § 1), and is sufficient to confer jurisdiction upon the court to issue the writ. (Rochester R. Co. v. Robinson, 133 N. Y. 242; Matter of Corwin, 135 id. 245; People ex rel. C. M. Ins. Co. v. Tax Com., 144 id. 483.)

The rule applied in the cases cited is, that the petition is in the nature of a pleading, and conclusions of fact only need be stated and not the evidence, necessary to support them.

The only criticism made upon the petition is, that it should have been alleged that the property was assessed at a higher proportionate rate than property in the city of Yorkers generally. To sustain this criticism we are referred to the case of .The People ear rel. Allen v. Badgley (138 N. Y. 314), where that rule was applied by the Court of Appeals. That case was, however, an appeal from an order which reduced an assessment, and what was said by the court had reference to the testimony in the case, and not to the allegation of the petition.

We think that it was sufficient to confer jurisdiction upon the court, that the allegation of overvaluation and inequality of assessment was set forth in the petition in the language of the statute. This conclusion renders it unnecessary to consider the question as to the amendment of the petition.

The order dismissing the writ must be reversed, with ten dollars-costs and disbursements, and the order denying the motion to- amend the petition must be affirmed, without costs.

All concurred.

Order dismissing writ reversed, with ten dollars costs and disbursements, and order denying motion to amend petition affirmed,, without costs.