142 Misc. 692 | N.Y. Sup. Ct. | 1931
This is a proceeding under sections 290-296 of the Tax Law for a writ of certiorari to review the 1931 assessment for taxes on relator’s real property. A prior proceeding was instituted seeking the same relief. The writ was granted, but subsequently quashed and the proceeding dismissed because the petition did not disclose the market value of relator’s property and the market value of comparable properties. It is not disputed the present petition contains the allegations which were absent in the prior petition and complies with the provisions of the Tax Law. Respondent claims the petition in this proceeding not having been presented within the time required by the statute (section 291 of the Tax Law), this Court is without jurisdiction to grant the relief sought. Relator contends the present application comes within the contemplation of section 23 of the Civil Practice Act, which provides if an action is commenced within the time limited therefor, or is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff may commence a new action for the same cause after the expiration of the time so limited and within one year after such reversal or determination. The word “ action ” is to be construed as including a special proceeding or any proceeding. (Civ. Prac. Act, § 10; People ex rel. McCabe v. Snedeker, 106 App. Div. 89; Matter of Decker v. Pouvailsmith Corp., 252 N. Y. 1-6.) The question for determination is, is the fifteen-day limitation provided by the statute a condition precedent to the maintenance of the proceeding or does section 23 of the Civil Practice Act apply? The courts when necessary have frequently applied the provisions of the Code and Civil Practice Act to the Tax Law. As was said in People ex rel. N. Y. C. R. R. Co. v. Block (178 App. Div. 251): “And so far as it [the Tax Law] regulates the practice and the use of the writ in tax cases the provisions are exclusive and override the Code provisions (Mercantile Nat. Bank v. Mayor, etc., 172 N. Y. 35). Where the statute is silent the provisions of the Code are effective (People ex rel. Rochester Telephone Co. v. Priest, 181 N. Y. 300).” People ex rel. Empire Mortgage Co. v. Cantor (198 App. Div. 317) and People ex rel. Durham Realty Corp. v. Cantor (234 N. Y. 507) are