Opinion
November 20, 1952.
Present — Taylor, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order insofar as appealed from reversed on the facts as a matter of discretion, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: Under the circumstances here presented, we think that, in the exercise of sound discretion, the motion of the respondents [appellants] to interpose a denial of the notice to admit the 30% ratio under section 292-a Tax of the Tax Law should have been granted. Such ratio would be deemed admitted unless it was denied in twenty days or "within such further time as the court may allow on motion and notice". The statute sets no limit upon the time within which the court may permit the denial. The hearing before the Referee had not been completed. There had been a new city attorney elected whose duty it was to protect the interests of the respondents and the taxpayers of the city and county. Furthermore it appears that the petitioner did not merely stand upon the notice to admit a 30% ratio but was prepared to introduce proof that the ratio was 27.1. We think that the moving affidavits were sufficient. The situation is not similar to an application to open a default order or judgment. Since the hearing has not been completed, no disadvantage can ensue to the petitioner by the granting of the motion whereas a denial of the motion places the respondents and incidentally the other taxpayers of the city and town in the position of being unable to make proof of the true ratio. All concur. (Appeal from part of an order denying respondents' motion for leave to serve a denial of a notice to admit, in a proceeding to correct an alleged illegal excessive assessment levied on petitioner's property.)