Opinion
June Term, 1899.
John Whalen, for the appellants.
P.A. Hargous, for the respondent.
The writ was applied for and granted upon the 1st day of November, 1898. It was to review the action of the tax commissioners in assessing the personal property of the relator for the year 1898. In a similar proceeding, under the Consolidation Act (Laws of 1882, chap. 410), we held that the annual assessment rolls become final in any event upon the first day of June of each year. ( People ex rel. Bronx Gas Electric Co. v. Barker, 22 App. Div. 161.) The provisions of the new charter are the same in this respect. Where no application is made for the reduction of an assessment on or before the thirtieth day of April, the action of the board becomes final on the first day of May. Where, however, such application is made, the board may act upon it during the month of May. (Laws of 1897, chap. 378, § 895.) In the latter case its action becomes final upon the first day of June. In the present case the petition does not allege that the relator made an application for a reduction on or before the thirtieth day of April. As against it, the determination of the board was consequently final and binding upon the first day of May. But even if it had made such an application on or before the thirtieth day of April, the determination sought to be reviewed would have been final and binding upon the first day of June. It follows that the writ was not granted within the four months to which the relator was limited by section 2125 of the Code of Civil Procedure.
The respondent claims that a stipulation was made, at the time of the argument below, that the application here should abide the determination of a similar motion in another case. We find no such stipulation in the record. There is none in writing, nor is there proof of an oral stipulation in open court, as suggested. We find a memorandum of the learned judge intimating that his decision was necessitated by such a stipulation, but we are limited in this review to the terms of the order appealed from and the papers upon which it was made. As the order contains no such recital, and as the papers are silent upon the fact suggested, we must review the action of the court below upon the merits.
The order should be reversed, with ten dollars costs and the disbursements of the appeal, and the motion granted, with ten dollars costs.
RUMSEY, INGRAHAM and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.