295 N.Y. 180 | NY | 1946
The relator herein, as the owner of real property situated in the city of Buffalo, instituted this certiorari proceeding to review a tax assessment levied for the year 1944 by the Board of Assessors by filing a petition on March 29, 1944, *182 which date was more than fifteen days but less than thirty days after the final completion of the assessment rolls.
The denial at Special Term of a motion by the Board of Assessors to dismiss the petition on the ground that the commencement of the proceeding was not timely within the meaning of the Charter of the City of Buffalo has been affirmed by the Appellate Division and leave to appeal granted from its nonunanimous order on a certified question of law, viz.: "Did this Court err, as a matter of law, in making its order of May 2, 1945?"
The Charter of the City of Buffalo was adopted at a referendum of the voters of the city at a special election held August 29, 1927, pursuant to chapter 363 of the Laws of 1924. It carried over from the preceding charter (L. 1914, ch. 217, § 117, as amd. by L. 1916, ch. 260), a fifteen-day limitation within which to institute proceedings to review tax assessments, and added a new provision to review special franchise assessments as provided by the Tax Law, both of which provisions were incorporated in the charter as section 327, article 18, "ACTIONS AND PROCEEDINGS". The remainder of section 117 of the original Charter was incorporated in section 554, article 29, "TAX AND ASSESSMENT ROLLS". For convenience, section 327 is quoted as follows: "§ 327. Certiorari to review general assessment. No proceeding shall be brought to review any assessment on the general rolls, or any of them, unless the petition for the writ is presented to a justice of the supreme court or at a special term of the supreme court in the judicial district in which the assessment complained of was made within fifteen days after the final completion of said assessment rolls and the publication of the notice thereof as required by section five hundred fifty-four. In any such proceeding the total assessment only can be reviewed. Assessments of special franchises may be reviewed as provided by the tax law." (Local Law, No. 4 of City of Buffalo, 1927 [published in Local Laws, 1932, p. 21].)
At the time of the adoption of the Charter of the City of Buffalo in 1927, section
Neither can we invoke sections 4 and 113 of the Civil Practice Act, for, in any event, the commencement of the proceeding must be timely. Here the proceeding is not timely when measured by the charter. *184
The orders should be reversed, with costs to the appellants, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion. The certified question should be answered in the affirmative.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER and MEDALIE, JJ., concur.
Ordered accordingly.