73 N.Y.S. 97 | N.Y. App. Div. | 1901
In this proceeding the relators sought to review the action of the commissioners of taxes and assessments in refusing to vacate
The authority to review such assessment is given by section 906 of the charter, which allows a writ of certiorari on the verified petition of the party aggrieved, but only on the grounds, which must be specified in such petition, that the assessment is illegal, and giving the particulars of the alleged illegality. The petition in this case specifies as the ground of illegality that the commissioners of taxes and assessments did not enter, or cause to be entered, in detail in the said annual record (viz., that provided for by section 892 of the charter) the assessed valuation of this lot owned by the relator, or the value of such lot, but, oh the contrary, wrongfully and unlawfully included the petitioner’s real property with five other separate lots belonging to the other owners, and purported to value the whole of said six lots together at the sum of $320,000, and to assess the same against a certain firm called Ludwig Brothers, who were not the owners or occupants of said property. In answer to this allegation the return, which must be taken in this proceeding as true, alleges that this lot of the relator’s, together with the five other lots mentioned, was occupied entirely by one building extending from West Thirteenth street through to West Fourteenth street, and for that reason it was impracticable to apportion the value of said building among the various parcels upon which it stood. Taking these two allegations as true, it would seem to follow that such an assessment, where one building was erected upon more than one lot, was not
There is a point raised by the relator as to the method of proceeding. It appears to be claimed that the petition and return are to be treated as pleadings in an action, the burden of proof being upon each party who alleges a fact — upon the petitioner, so far as the allegations of the petition are denied by the return, and upon the respondents, where their return alleges a fact as the basis of their action. The cases cited to sustain that proposition were not questions as to matters of proof, but as to the form of the allegation in the petition; and as to the form of such an allegation it was held that the petition is in the nature of a pleading, and only conclusions of fact need be stated and not the evidence necessary to support it. (Matter of Corwin, 135 N. Y. 245.) The proceeding under such a writ, however, is expressly regulated by the charter and the Tax Law. By section 906 of the charter, power is given to the Supreme Court to review the determination of the department by certiorari. The procedure upon this writ seems to be regulated by article 11 of the Tax Law. By section 250, the form of the petition is prescribed. By section 252, provision is made for the return to the writ. By section 253, it is provided that if it should appear upon the return to such a writ that the assessment complained of was illegal, the court may order the assessment to be stricken from the roll. Under this section, it would appear that the court had no power to vacate the assessment unless it appeared by the return that it was illegal. The power is thus given to the court upon the hearing, if it should appear that testimony was necessary for the proper disposition of the matter, to take evidence or to appoint a referee to take
My conclusion is that this order should be reversed, with costs and disbursements of this appeal, and the proceeding dismissed1 with costs.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order reversed, with costs and disbursements, and proceeding dismissed, with costs.