163 N.Y. 384 | NY | 1900
Lead Opinion
We agree with the courts below that the last sentence of section 250 of chapter 908 of the Laws of 1896, which provides that "Two or more persons assessed *386 upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition," was intended to apply to a situation wherein the adjudication upon the complaint of one taxpayer necessarily determines the complaints of others, as, where in reality but a single issue is presented, so that the law being settled as to the facts of one case it is alike applicable to all other cases, but was not intended to permit any and all parties to unite who are aggrieved because of their local assessments. The statute was not, for instance, intended to countenance such an absurdity as uniting as relators in proceedings to review assessments the Brooklyn Rapid Transit railroad, with its several hundred miles of surface and elevated railroads in the borough of Brooklyn, the Metropolitan Traction Company, with its various owned and leased lines in the borough of Manhattan, and the Union Railway Company in the borough of the Bronx, necessitating upon the trial an examination of facts touching the value of the properties of each company as distinguished from the others and involving, therefore, different issues.
Our conclusion is that the courts below rightly decided the question presented and we approve of the reasoning which led to their determination.
Dissenting Opinion
We think that section
Section 906 of the charter of the city of New York (Ch. 378, Laws 1897) is practically identical with the foregoing section, except that the section of the charter omits the final clause of section
If we construe section 250 literally with a view to promote its remedial intent instead of defeating it, we find that it first provides that "any person assessed upon any assessment roll claiming to be aggrieved" may present his petition, and then the section provides what the petition shall set forth as to his alleged individual grievance. Then it provides that "Two or more persons assessed upon the same roll, who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition." That is, as one person may set forth his individual grievance, so two or more persons instead of making separate petitions may unite with him in the same petition, and each set forth his individual grievance, provided he is affected in respect of his grievance in the same manner "by the alleged illegality, error or inequality." The *389 section does not say as "alleged" by the one or "any person," mentioned in its opening words, and as it extends its remedy to "two or more persons," it is reasonable to construe it as meaning that each one of the "two or more persons" mentioned in the final clause of the section has the same right of individual statement in the petition as the one person mentioned in its opening clause, provided the illegality, error or inequality he complains of affects him in the same manner as the like (not the same) inequality, error or illegality affects every other petitioner.
The petition is framed in pursuance of the provisions of the section thus construed. As said in People ex rel. Warren v.Carter (
The writ was issued within four months after the determination of the assessors became binding. This seems to be the practice in the first department. (People ex rel. Bronx Gas Co. v.Barker,
The petition states that "the said assessments became fixed and unchangeable on the first day of June, 1899, and have since been confirmed by the Municipal Council," but is silent as to the filing of the roll and the first posting or publication of the notice thereof. The respondents have made no return to the writ, and hence the allegations of the petition are not controverted. The notice of motion to supersede the writ did not state as one of the grounds of the motion that the petition was presented too late, but that it "is not in accordance with the procedure provided by article eleven of chapter 908 of the Laws of 1898." That may be true and not be fatal.
The charter is silent as to the time. The provisions of the Tax Law fixing the limit at fifteen days make the time commence with a filing of the assessment roll, which, if ever applicable to the city of New York, is not applicable under the provisions of the charter. (Sections 907, 908, 909, 910, 911.) Then if section 2125 of the Code is inapplicable, there is no time limit. (Matter ofCorwin, supra.) If that section does apply, this writ is within the limit it prescribes. Much has been said by this and other courts to the effect that the writ of certiorari to review assessments for taxation is governed by the statute apart from the Code. But we do not need to look to section 2125 to sustain this writ.
There are some other objections suggested by the respondents, in opposition to the allowance of the writ, but they do not strike us as requiring discussion.
The order should be reversed, with costs, and the motion to supersede denied, with costs.
BARTLETT, HAIGHT and VANN, JJ., concur with PARKER, Ch. J., for affirmance; O'BRIEN and MARTIN, JJ., concur with LANDON, J., for reversal.
Order affirmed, with costs. *391