Opinion
July Term, 1903.
Charles A. Collin, for the appellant.
George S. Coleman, for the respondents.
There is not only a division in this court upon the question presented by this appeal, but the opinions and decisions which have been delivered from time to time respecting the subject-matter are not easy of reconciliation either in this court or in the Court of Appeals. I am not able to see any substantial difference between the application of the appellant to the commissioners of taxes and assessments for a reduction of its assessment in this case and the application which was considered in People ex rel. Broadway Improvement Co. v. Barker ( 14 App. Div. 412), and in People ex rel. Sutphen v. Feitner (45 id. 542). The doctrine of the last case, however, was applied in People ex rel. Zollikoffer v. Feitner (63 id. 615), and this case upon appeal to the Court of Appeals was affirmed without opinion ( 168 N.Y. 674). The distinction between the application in the Zollikoffer case and in the Sutphen case is not apparent, and as the Court of Appeals affirmed the holding in the former case, it would seem to follow that the Sutphen case was correctly decided. Such was the view of this court, as expressed in People ex rel. Greenwood v. Feitner ( 77 App. Div. 428). In People ex rel. Bronx Gas Co. v. Feitner (43 id. 198), the application was held to be good, although its terms were scarcely broader than in the Sutphen case It was in one aspect, however, distinguishable therefrom, as is pointed out in the opinion in the latter case, and also by the learned court below in its decision in the present case. In People ex rel. Broadway Realty Co. v. Feitner ( 61 App. Div. 156) the application is in substance, and almost in language, like the application in the present case. Therein this court held that such application was sufficiently broad to present to the commissioners the questions of overvaluation and inequality. Upon appeal to the Court of Appeals the order was affirmed on the prevailing opinion delivered in this court ( 168 N.Y. 661). The question, therefore, presented by this appeal is no longer one of construction of the statute (Laws of 1897, chap. 378, §§ 895, 906) and of the application thereunder, but has become one of authority. As the last decision of the Court of Appeals, involving the question now before us, upheld and sustained the application as being sufficient to raise the questions of overvaluation and inequality of the assessment, we must now hold that the present application, which is in substance the same as was considered in the last decision, is also sufficient in statement.
It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and that a rehearing be had under the writ.
O'BRIEN, INGRAHAM and McLAUGHLIN, JJ., concurred; VAN BRUNT, P.J., dissented.
Order reversed, with ten dollars costs and disbursements, and rehearing ordered.