Summary
In People ex rel. N.Y.C. H.R.R.R. Co. v. Feitner (58 App. Div. 343), where the court allowed an amendment of an allegation of overvaluation, no motion was made to quash the writ.
Summary of this case from People ex Rel. O'Neil v. PurdyOpinion
March Term, 1901.
Ira A. Place, for the appellant.
James M. Ward, for the respondents.
The relator, on July 18, 1899, obtained a writ of certiorari to review the action of the respondents in the assessment for taxation of certain real property of the relator. The writ alleged that "Whereas, said petitioner claims * * * that the said assessment is illegal and is erroneous by reason of over valuation; and is erroneous by reason of inequality, in that it is made at a higher proportionate valuation than the assessments of other real estate on the same tax roll, and specifying instances in which the said inequality exists, and the extent thereof; and that said assessment on petitioner's property is unequal, in that while said property is assessed at the amount stated in said petition, that of other owners of property in said tax district assessed upon said roll is assessed at a lower percentage of its full value on the average, you having assessed the property in said district * * * at a percentage less than one hundred per cent of its full value instead of at full value as the law requires; and that such inequality exists not only in specific instances, but generally throughout said tax district." This writ was granted upon a petition. The respondents filed a return to the writ on May 28, 1900, and on the 15th of November, 1900, the defendants made a motion to be allowed to amend the petition by adding an allegation that "all other real property in the city of New York was assessed by said commissioners in the year 1899, for the purposes of taxation for said year, at sixty-three per cent of its fair market value, whereas all of the property of your petitioner, owned and leased, mentioned in this petition, was assessed at more than one hundred per cent of its fair market value." The motion was made upon the affidavit of the attorney for the relator who says that when he drew the petition he understood that the allegation therein was sufficient to fully raise the issue of inequality in the assessment, but that he has been informed that counsel for the commissioners claims that such allegation as is contained in the original petition was not sufficient to properly raise that issue, and that the attorney had been but recently advised that such claim was made, and he, therefore, desires to amend the petition by making the allegation clear so that the principal question sought to be determined in this proceeding can be determined and the relator not thrown out of court on the ground that its allegation was not sufficient to raise the issue which had to be determined in this proceeding. The respondents opposed the application; it was denied, and the relator appealed. The proceeding upon a writ of certiorari is prescribed by the Code of Civil Procedure. Section 2133 provides that "After a writ of certiorari has been issued, the time to make a return thereto may be enlarged, or any other order may be made or proceeding taken in the cause, in relation to any matter not provided for in this article, as a similar proceeding may be taken in an action brought in the same court and triable in the county where the writ is returnable." The court, therefore, had in this proceeding power to make amendments as in an action, and under section 723 of the Code the court has the power to amend any process, pleading or other proceeding by inserting an allegation material to the case. By section 2138 of the Code it is provided that the cause must be heard upon the writ and return and papers upon which the writ was granted. The writ states that the relator's claim was to review the action of the tax commissioners upon the ground of inequality in the assessment, and it appeared from the papers upon which this motion was made that the relator intended to allege in the petition the facts which would justify a review of the determination of the commissioners upon that ground. It also appeared that counsel for the relator did not understand that the allegations of the petition were not sufficient to raise that question until upon the hearing of a motion at Special Term in August, prior to making this motion, counsel for the respondents insisted that the allegations of the petition were not broad enough to justify the court in reviewing the inequality of the assessment. The respondents did not raise this point of the insufficiency of the petition by a motion to quash the writ, but filed a return without taking the objection, and it would seem that this application was made within a reasonable time after the objection was first formally taken. No new cause of review is alleged, but the petition is so amended as to include an allegation of inequality of the assessment to enable the relator to have the real question brought up for review. It seems to me that this was just what was contemplated by the provisions of the Code giving the power to amend, and I can see no reason why it should not have been granted. The fact that the motion was not made until November certainly is not such laches as would justify the court in denying the application. As before stated, the point was not taken by the respondents until August, and the motion was made within three months thereafter. The respondents took nearly a year to file their return. It is not alleged that the respondents have been in any way prejudiced by this delay of three months in making the motion. Certainly three months, considering the fact that a part of it fell within the summer vacation, is not an unreasonable time to determine whether or not such a motion should be made, and to prepare the papers necessary for its proper presentation to the court. While laches is always a ground for denying such a motion, the delay here shown is not such laches as would justify the court in denying the motion. As, however, the respondents claim that a new return will be required, the relator should pay the costs of the proceeding.
The order appealed from is, therefore, reversed and the motion granted upon the relator paying fifty dollars costs of this proceeding to the respondents, the respondents to have the right to file a new return.
O'BRIEN and McLAUGHLIN, JJ., concurred; VAN BRUNT, P.J., dissented.
I think there was laches. I dissent.
Order reversed and motion granted upon relator's paying fifty dollars costs of this proceeding to the respondents, the respondents to have the right to file a new return.