80 N.Y.S. 610 | N.Y. Sup. Ct. | 1903
This is a motion to quash a writ of certiorari, and the single point involved is whether or not the proceeding was begun in time. Prior to the passage of chapter 466, Laws of 1901, amending the Greater Eew York charter, much discussion and some confusion had arisen as to the time within which certiorari proceedings to review an assessment for taxation must be instituted. It was held in a number of cases by the Appellate Division that the fifteen-day limit prescribed by section 251 of the General Tax Law did not apply, and it was generally held that the limitation of four months should be applied by analogy to the provisions of section 2125 of the Code of Civil Procedure regulating the procedure relative to the writs of certiorari provided for by the Code. This view has never been definitely adopted by the Court of Appeals. In People ex rel. Thomson v. Feitner, 168 N. Y. 441, the court expressly declined to pass upon it, but held as the writ had actually -been issued and served within four months this, under the circumstances of the case, was sufficient. In People ex rel. Central Gas Co. v. Wells, where the writ was served many months after the confirmation of the assessment, the writ was quashed at Special Term and the order was affirmed at the Appellate Division and the Court of Appeals. Eo opinion, however, was written in either court and it is impossible to say whether the affirmance went upon the ground that the writ was applied for more than four months after the confirmation, or upon the ground that no definite time to apply for the writ was fixed by law, but that the relator had been guilty of gross laches, as clearly it had been. By chapter 466, Laws of 1901, the Legislature has undertaken to set the question at rest, by adding to section 906 of the charter, being the section providing for a certiorari to review the action of the tax commissioners, the following: “ Such certiorari and all proceedings thereunder may be had and taken in the judicial district where such real estate is situated, and may be begun at any time before the first day of Eovember in the year in which the determination sought to be reviewed or corrected has been made.” In the present case the relator presented and filed his petition for the writ, and the court ordered the writ to issue on October thirty-first, but the writ was not actually served upon any of the respondents until Eovember fifteenth. The writ is returnable on the first Monday of December. The question then is whether the proceedings were begun by the presentation and filing of the peti
For these reasons I conclude that the proceeding was seasonably begun and the motion to quash must, therefore, be denied.
Motion denied.