154 Misc. 576 | N.Y. Sup. Ct. | 1934
On September 17, 1934, last this court at Special Term at Fonda, N. Y., granted relators’ petition for the issuance of a writ of certiorari directed to defendants. The allowance was made under the provisions of section 291 of the Tax Law to review defendants’ recent assessment of petitioners’ real property for the purposes of taxation in Fulton county. It was ordered that defendants make and serve their return to said writ upon petitioners’ attorneys on or before October first, and that the writ be returnable at a-Special Term to be held at Johnstown, N. Y., on October 8, 1934.
At the time of the return of said writ defendants appeared specially and moved to supersede it upon the ground that the court had failed to acquire jurisdiction because of the non-service upon them of a certified copy of the “ certiorari order ” as required by section 1294 of the Civil Practice Act.- By consent of attorneys for all parties, this motion was then transferred to this court sitting at an adjourned trial and Special Term at Fonda, during the week beginning October twenty-ninth.
The questioned service was, in fact, made as follows upon each of the three defendants: by delivering to and leaving with each of them and the town clerk of the town of Broadalbin, personally, on September 18, 1934, a true copy of the petition upon which the order allowing the issuance of the writ was made with a written notice that the original had been filed in the county clerk’s office, a true copy of said order with a written notice of its due entry in said clerk’s office, a true copy of the writ which was issued out of and under the seal of this court on said day, and, at the time of the service of such papers, exhibiting to each of said defendants and to the town clerk the original writ thus issued. That full and ample service was thus made so as, in fact, to adequately apprise defendants of the issuance of said writ and their duties thereunder, and that such service was, in fact, timely, as regards such purpose, is not disputed. Defendants, however, take the position that the remedy which relators invoke being purely statutory, a strict com
The Civil Practice Act in abolishing the writ of certiorari expressly saved the so-called writ of certiorari as it exists for the remedy of a complaining taxpayer under the provisions of the Tax Law to review assessments which are placed on the local tax rolls (Civ. Prac. Act, § 1283). The new form of certiorari proceeding established by the change has directly to do with the function and office of the former Code writ.
The existence of the remedy here invoked by the relator -under the provisions of article 13 of the Tax Law had its origin in chapter 269 of the Laws of 1880, a revision of which formed the 1896 Tax Law (Laws of 1896, chap. 908), and from the latter statute the pertinent provisions of article 13 of the Tax Law were derived. It was held in Mercantile National Bank v. Mayor, etc., of N. Y. (172 N. Y. 35, 42) that the aforesaid act of 1880 created a “ new and complete system ” for reviewing upon certiorari, and for thereby correcting errors of the assessing officers and “ resumed within itself ” the remedy available to a taxpayer aggrieved by the action of an assessing officer and constituted the only authority for the review of errors in assessments. In this case, as in others before and after it, the general pronouncement is made to the effect that the provisions of the former Code of Civil Procedure, relating to a writ of certiorari as there established and regulated, are inapplicable to this new remedy, which was styled as a “ new and complete system ” for reviewing errors in assessments. The first of such pronouncements was made in People ex rel. Church of Holy Communion v. Assessors, etc., Greenburgh (106 N. Y. 671). It was reiterated on the authority of that case in Matter of Corwin (135 N. Y. 245, 249). It was again stated in People ex rel. Manhattan R. Co. v. Barker (152 N. Y. 417, 431). This last pronouncement was then quoted with approval in People ex rel. Thomson v. Feitner (168 N. Y. 441, 457), and again in People ex rel. Sands v. Feitner (173 id. 647, 649).
In People ex rel. Church of Holy Communion v. Assessors, etc., Greenburgh (supra) relief was sought under the aforesaid act of 1880, but the writ was made returnable at the General Term in Brooklyn in 1886 at which an order was made striking it from the calendar there because it should have been made returnable at Special Term as required by section 2 of said act. The pronouncement of the Court of Appeals, in affirming said order, as to the
People ex rel. Rochester Telephone Co. v. Priest (181 N. Y. 300, 306, 307) noted “ some dispute ” as to how far all or any of certain other provisions of the former Code of Civil Procedure applied to a writ of certiorari sanctioned by the Tax Law and there held that the principle which supported the questioned provisions of the Code did so apply but were embodied in the remedial statute. (Then Tax Law, § 45, now § 46.)
From the above cases it is thus seen that despite the general language employed, the inapplicability of the Code provisions to the writ of certiorari sanctioned by the Tax Law is as to (1) An expressed procedural provision in the Tax Law. (2) The nature of the availability of relief, viz., a matter of right and not of discretion. (3) Scope of inquiry, which in a proper case may be in the nature of a controversy to be determined or a venire de nova.
It is the foregoing cases which contain the general pronouncement of the inapplicability of the Code provisions upon which the relators rely to excuse their non-compliance with section 1294 of the Civil Practice Act as to service of process. I feel, therefore, that their position must yield to the views expressed in People ex rel. New York Central R. R. Co. v. Gilson (239 App. Div. 108, and cases there cited; affd., 265 N. Y. 457). Were it not for the decision in that case it would be my thought that the revision accomplished by article 7 of the Civil Practice Act in abolishing the ancient form of a State writ and supplying instead thereof an order as the vehicle, renders the method of service of such order inapplicable to the service of the preserved writ. The Civil Practice Act now, in its express provisions, deals only with .a certiorari order, and section 1294 provides how it shall be served. No express provision is made
In People ex rel. N. Y. C. R. R. Co. v. Gilson (supra) service of the writ appears to have been made by only leaving a copy thereof with the officers against whom it was directed and exhibiting to them the original. Such service was held insufficient. In the instant case the service was in fact far more complete and certainly adequate to give full and timely notice of all that had transpired. Full and complete service was made as regards the service of the Code writ under the former provisions of section 2130 of the Code of Civil Procedure. At the time of the granting of the order directing the issuance of the writ the court had, and at the time of granting any “ certiorari order ” the court has power to give directions respecting its mode of service different from those prescribed by section 1294 of the Civil Practice Act. It is a new field to determine as to just how the service of process allowed under the sanction of the Tax Law can be made to comply specifically with the requirements of the Civil Practice Act. Must both the order allowing the writ and the writ itself be certified and served, or need only the order be certified? If only the order allowing the writ is required to be certified, the anomaly is presented of the requirement of certification of an intermediary direction, which is dispensed with as to the process itself. If the writ itself must also be certified, the hiatus occurs by the inferred presence of a most important requirement conspicuously absent from the express language of the Civil Practice Act • — • a requirement to certify a copy of court process expressly abolished by that act.
Since ample and timely notice was in fact given the defendants, it is my opinion that jurisdiction became complete to the extent that the defect in a studied arid exact compliance with the requirements as to service is a remediable irregularity, curable as a matter of discretion to be exercised in the interests of justice. Section 105 of the Civil Practice Act here facilitates the general rule that courts have inherent power to amend their process (50 C. J. 599)
Upon the argument of the motion the contingency now met was envisioned and counsel agreed that any granting of the defendant’s motion to supersede be held pending an application by relators for a further order in the premises. I, therefore, withhold the granting of defendants’ motion for such reasonable time as will enable the relators to move anew as they may be advised.
