People ex Rel. Long Island R.R. Co. v. Wolf

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE LONG ISLAND RAILROAD…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 25, 1912

152 App. Div. 173 (N.Y. App. Div. 1912)

136 N.Y.S. 465

Opinion

July 25, 1912.

George B. Stoddart, for the appellants.

Louis J. Carruthers [ Joseph F. Keany with him on the brief] for the respondent.

WOODWARD, J.:

The defendants have not filed a return to the writ of certiorari; they have filed what they term an answer, in which they admit the making of the assessment roll, etc., and then allege that "all and singular the property of the relator as set forth in the petition herein was assessed at the true market value thereof as the same was ascertained and determined by the said Abram Wolf, Jeremiah F. Stapleton and Timothy J. Bird, acting as Assessors of the Town," etc., and the order appealed from simply commands the defendants to file "a proper and verified return to the writ of certiorari." It is true that the order appealed from requires the defendants to do rather more than the relator claims is necessary in the present instance, but this is a matter which could easily have been remedied by a motion for a resettlement of the order, and does not justify this appeal. This is not the old common-law writ of certiorari, nor one provided for by the Code of Civil Procedure, but is one arising under the provisions of the Tax Law (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], §§ 290-292), and the officers making a return under the Tax Law are required to make "certified or sworn copies of such roll or papers, or of such portions thereof as may be called for by such writ," and this without any reference to fees or other compensation. The return as made does not meet the requirements of the law. ( People ex rel. Consolidated Gas Co. v. Feitner, 78 App. Div. 313, 315; People ex rel. New York, O. W.R. Co. v. Tax Comrs., 132 id. 604, 607.)

The order appealed from should be modified to provide for a certified copy of so much of the assessment roll of 1911 as is necessary for the purposes of the writ, and as so modified affirmed, with ten dollars costs and disbursements.

HIRSCHBERG, P.J., BURR, THOMAS and RICH, JJ., concurred.

Order modified so as to provide for a certified copy of so much of the assessment roll of 1911 as is necessary for the purposes of the writ, and as so modified affirmed, with ten dollars costs and disbursements.