22 A.D. 161 | N.Y. App. Div. | 1897
. The relator applied for and obtained a writ of certiorari to review the action of the respondents in making an assessment of its real property for the purposes of taxation for the year 1897. Before the return day, the respondents moved to quash the writ. The motion was granted on the ground that the writ had been prematurely obtained, and that the court was, therefore, without jurisdiction to entertain the proceeding. From the order entered upon that decision this appeal is taken.
It was held by the judge at Special Term that it was shown by the petition that the assessment roll had not been completed when application for the writ was made, and that, therefore, there was nothing which properly could be reviewed or corrected. That supposed incompleteness grows out of the fact that the assessment rolls, or books made up by the commissioners of taxes, were not delivered to the board of aldermen until the 1st of July, 1897, and that the writ was issued on the twenty-ninth of the preceding June. It is provided in the Tax Law (Laws of 1896, chap. 908, § 250) that any person assessed upon an assessment roll, claiming to be aggrieved by reason of any assessment upon property therein, may present a petition to the Supreme Court setting forth that the assessment is illegal, and that such petition must show that application has leen made in due time to the proper officers to correct such assessment. Section 251 of the same act provides that the petition must be presented to'a justice of the Supreme Court, or at a Special Term of the court in the judicial district in which the assessment complained of was made, within fifteen days after the completion and filing of
To ascertain whether the writ in this proceeding was prematurely issued, we must have recourse to the provisions of the Consolidation Act. All that was necessary was that there should be a completed assessment book or roll; that the commissioners of taxes should have acted definitely in fixing the amount of the assessment upon the relator’s property, and should have taken final action, which could not be revised or altered, and which constituted an adjudication that could be reviewed. The filing or posting of notice referred to in section 251 of the Tax Law can have no application, for there is no such thing as tire filing of the assessment roll or posting of notice in the city of New York, within the meaning of that section. The filing therein mentioned is evidently that required by section 38 of the Tax Law, which provides that an assessment roll, when completed and verified, shall be filed on or before September first in the office of the town or city clerk, there to remain fifteen days for public inspection. That provision may apply to fifty-nine of the sixty counties of the State, but cannot have the remotest application to the city of New York. The process in that city is, according to the provisions of the Consolidation Act, that tax books are opened on
What was necessary, in order to enable the petitioner to procure the writ in this case was a fixed and unchangeable assessment. Filing of the assessment roll was not necessary. His right to the writ must be governed by the general rule respecting applications of this character. It isa right which accrues when the determination to be reviewed becomes final and binding upon the relator (Code Civ. Proc. § 2125), that is to say, the writ must be granted within four calendar months after the determination to be reviewed becomes thus final and binding. As we have seen, the relator’s petition was presented and the writ granted after the final determination, and within the period fixed by the Code.
The decision of the court below was wrong, and the order quashing the writ must be reversed and the writ reinstated, and the subject remitted to the Special Term for its determination upon the matters arising under the writ.
Van Brunt, P. J., Barrett, Rumsey and Williams, JJ., concurred.
Order reversed, with costs, and case remitted to Special Term.