People ex rel. Brooklyn Elevated Railroad v. Board of Assessors

| N.Y. App. Div. | Nov 15, 1896

Per Curiam:

The relator presented its petition, alleging that it was illegally and erroneously assessed, and prayed for the issue of a writ of certiorari to review such assessment. On its petition the writ was granted. The petition, besides allegations of other illegality and error in the assessments, stated that other real and personal property in the city upon the same roll was assessed at a less proportionate value than the real estate of the petitioner. The petition failed to specify the instances in which such inequality existed and the extent thereof, as required by section 250 of chapter 908 of the Laws of 1896. For this defect the appellant moved to strike out of the petition the allegations that other real and personal property waé assessed at a less proportionate value than the real estate of the petitioner. On the hearing of this motion the court granted the petitioner leave to amend its petition by specifying the instances and extent of disproportionate valuation. From the order granting such leave this appeal is taken.

By section 251 of the act cited, on the presentation of the petition the justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment. The certiorari thus allowed to issue is not defined and must be the ordinary common-law writ prescribed by the Code, except as modified by the statute, which permits the taking of testimony as to the alleged grievances. By section 723, Code Civil Procedure, the court may, at any stage of the action, in furtherance of justice amend any process, pleading or other proceeding. This ¡lower is confined to actions and does not include special proceedings as a class. (Matter of the City of Buffalo, 78 N.Y. 362" court="NY" date_filed="1879-10-14" href="https://app.midpage.ai/document/in-matter-of-city-of-buffalo-3618316?utm_source=webapp" opinion_id="3618316">78 N. Y. 362.) But, by section 1997, the provisions of the Code relating to amendments are made applicable to special proceedings instituted by State writ, including the writ of certiorari. Enough was stated in the petition to give the court jurisdiction to issue the writ. Having jurisdiction, we think it was within its power to allow an amendment to the petition initiating the application, as well as in proceedings subsequent to the issue of the writ, where its power would have been unquestionable. (People ex rel. Hasbrouk v. Supervisors, 135 N.Y. 522" court="NY" date_filed="1892-10-18" href="https://app.midpage.ai/document/people-ex-rel-hasbrouck-v-board-of-supervisors-3596182?utm_source=webapp" opinion_id="3596182">135 N. Y. 522.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.