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rel. Buffalo & 8. L. R. R. Co. v. Fredericks, 48 Barb. 173; aff'd. 48 N. Y. 70; People ex rel. Manh. Ry. Co. v. Barker, 152 Ib. 417, 430.) In People es rel. Cook v. Board of Police (supra), Judge Woodruff, in his opinion, elaborately reviews the authorities and concludes that there were these three classes, into which certiorari proceedings divided themselves: First, that of the common-law writ, brought to review the summary conviction of a person charged with crime, or offense in law; second, that of the common-law writ brought to review other proceedings of inferior tribunals, magistrates, or bodies of officers, under a special, or limited jurisdiction, and, third, the statutory certiorari. Speaking of the second class, he observed: “The decisions of this state seem to hold with much uniformity that none but jurisdictional questions can be considered.' In that case, as in the later case of People ex rel. Clapp v. Board of Police (72 N. Y. 415), where Judge An. drews wrote, the question related to the punishment of the relator by the board of police for an offense and it was held that, in such cases, the power to review extended to the consideration of the question whether there was any proof supporting the conviction. ...
“Thus, the common-law writ of certiorari, in bringing up for review the proceedings of the commissioners of taxes and assessments, which are, unquestionably, judicial in their nature (Barhyte v. Shep. ard, 35 N. Y. 238; Buffalo & 8. L. R. R. Co. v. Supervisors, 48 Ib. 93; Stanley v. Supervisors, 121 U. S. 535), would present questions relating to jurisdiction and to regularity and not to the merits of this controversy. But, in my opinion, the common-law writ would be no longer available in such cases. With the enactment of Chapter 269, of the Laws of 1880, there was created a new and complete system for reviewing upon certiorari, and for thereby correcting the errors of assessing officers. (People ew rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610.) It rendered inapplicable the provisions of the Code of Civil Procedure, relating to the writ of certiorari (People ex rel. Church of the Holy Communion v. Assessors, 106 N. Y. 671; Matter of Corwin, 135 Ib. 245), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common-law now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation. It was entitled 'An act to provide for the review and correction of illegal, erroneous, or unjust assessments.' It authorized the issuance of a writ to review assessments for illegalities, the grounds of which are specified in the petition, or which are alleged to be erroneous, by reason of overvaluation, or to be unequal, 'in that the assessment has been made at a higher proportionate valu. ation than other real or personal property on the same roll by the same officers.'”
The special statutory writ of the Laws of 1880 (Chap. 269) now in Art. XIII of the Tax Law (Sec. 290 et seq.) is only applicable to assessments “upon any assessment roll” and of course applies to special franchise assessments; furthermore, by section 46 of the Tax Law it is specifically provided that Art. XIII is made applicable to such assessments as far as practicable.
The Greater New York Charter provides for a certiorari (Sec. 906) to review the final determination of the board of taxes and assessments of that city; the provision is similar to the writ of Sec. 290 of the Tax Law.
The writ provided for by Sec. 199 of the Tax Law for reviewing the determination of the state comptroller is the so-called code writ as distinguished from the special statutory writ and is not as broad in scope as the latter (People ex rel. Manhattan 'R. Co. v. Barker, 152 N. Y. 417). The relator is concluded by the return of this writ.
The special statutory writ permits a re-determination of all questions of fact; the return thereto is not conclusive. The relator may give further evidence upon the material issues. People ex rel. Citizens' Lighting Co. v. Feitner, 81 App. Div. 118; People ex rel. Bibb Manufacturing Co. v. Wells, 84 App. Div. 330; People ex rel. Knickerbocker Co. v. Wells, 99 App. Div. 455; affd 181 N. Y. 245; People ex rel. Twenty-third St. 'R. Co. v. Feitner, 92 App. Div. 518; People ex rel. Sands v. Feitner, 173 N. Y. 649.
In People ex rel. Citizens' Light Co. v. Feitner, 81 App. Div. 118, the court carefully expounds the distinction between these various writs. For practical purposes, it is simplest to bear in mind that the writ that should issue in all tax cases is the writ prescribed by the Tax Law governed as to procedure by the Code of Civil Procedure. (People ex rel. Bklyn H. R. R. Co. v. Assessors, 10 App. Div. 393.) Where, with respect to this writ, the Tax Law and the Code of Civil Procedure are inconsistent, the provisions of the former prevail, and the latter are inapplicable (People ex rel. The Church v. Assessors, 106 N. Y. 671); where the Tax Law does not make specific provision the Code governs. People ex rel. N. Y. C. R. R. Co. v. Cook, 62 Hun, 303 ; People ex rel. Erie R. R. Co. v. Webster, 49 App. Div. 556, 565; People ex rel. N. Y. L. E. & W. R. R. Co. v. Low, 40 Hun, 176; People ex rel. Kendall v. Feitner, 51 App. Div. 196.
The power of the Supreme Court to issue a common-law writ of certiorari to review an assessment for the purposes of taxation, void for want of jurisdiction, was not taken away by Sec. 290 of the Tax Law (formerly Sec. 250 Tax Law of 1896), or by any other statute. People ex rel. Powder Co. v. Feitner, 41 App. Div. 544. But a common-law writ will not be issued to review an assessment which is alleged to be erroneous, because of over-valuation or of inequality. People ex rel. Kendall v. Feitner, 51 App. Div. 196.
Stay, pending certiorari, not granted under section 906.A stay pending review by certiorari, where the writ was obtained under the provisions of the charter (section 906), cannot be granted. The writ thus provided for, issues as of right upon the presentation of a specified case and there is no authority in the statute for a stay. It is thus distinguished from the writ treated of in Article 7 of Title 2 of Chapter 16 of the Code, which authorizes a stay and is within the discretion of the court to grant. Code, section 2127; In re Corwin, 135 N. Y. 245; People ex rel. Dale v. Feitner, N. Y. Law Journal, May 4, 1900; Special Term, Part I, Bischoff, J. Nor is there any authority for a stay, where the writ is obtained under the provisions of the Tax Law (Sec. 290 et seq.).
THE PRACTICE IN CERTIORARI PROCEEDINGS UNDER THE NEW
YORK CHARTER AND THE Tax Law.
The case and statute law applicable to certiorari under the New York charter and the Tax Law are treated together and as part of one and the same subject; for while the provisions of the New York charter differ in some respects from the Tax Law, and, in so far as they differ, the charter provisions prevail in the city of New York, nevertheless those provisions of the Tax Law not repugnant to the charter must be taken as supplementary, and in addition, to the provisions of the local law.
Certiorari under the Greater New York Charter.-A certiorari to review or correct on the merits any final determination of the board of taxes and assessments shall be allowed by the Supreme Court or any justice thereof, directed to the commissioners of taxes and assessments on the verified petition of the party aggrieved, but only on the grounds, which must be specified in such petition, that the assessment is illegal, and giving the particulars of the alleged illegality, or that it is er. roneous by reason of over-valuation, or in case of real estate, that the same is erroneous by reason of inequality, in that the assessment has been made at a higher proportionate valuation than the assessment of other real estate of like character in the same ward or section or other real estate on the tax rolls of the city for the same year, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. Such certiorari and all proceedings thereunder may be had and taken in the judicial district where such real estate is situated, and may be begun at any time before the first day of July following the time when the determination Bought to be reviewed or corrected was made. (Sec. 906, Charter, as amended by ch. 455, L. 1911.)
Certiorari under the Tax Law.— Any person assessed upon any assessment roll, claiming to be aggrieved by any assessment for property therein, may present to the Supreme Court a petition, duly verified, setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or if erroneous by reason of over-valuation, stating the extent of such over-valuation, or if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. Such petition must show that application has been made in due time to the proper officers to correct such assessment. Two or more persons assessed upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition. (Sec. 290, present Tax Law, former sec. 250 Tax Law of 1896.)
Source: This provision is the same in substance as sec. 1, chap. 269, Laws of 1880, with the exception of the last paragraph but one, showing that application in due time has been made for the correction of
the assessment. This provision is new. The Petition; the person aggrieved.— There is a difference between the language of the Tax Law and the New York charter, the former providing that "any person assessed . . . claiming to be aggrieved" and the latter, holding that the certiorari shall be allowed on the verified petition of the “party aggrieved," but there has never been any serious question as to the intent of the legislature limiting the remedy to the party aggrieved, irrespective of the form of the assessment, whether such party be the owner of the property assessed, or lessee, or obligated in any way to pay the tax, or whether he be assessed as trustee, committee or in a representative capacity. The language of the New York charter more nearly expresses the legislative intent, and is in accord with the present practice and method of assessment (Section 21 Tax Law, as amended in 1911, and 1912). Property is often assessed to persons who are not the owners thereof, and who are not even obligated to pay the tax or interested in the property, so that the limitation of the remedy to the “person assessed” would make the proceeding ineffective and void, as far as many assessments are concerned. That the right to have an assessment reviewed rests only with the party aggrieved, has been well established. People v. Wall St. Bank, 39 Hun, 525 (1886); People ex rel. Wright v. Chapin, 104 N. Y. 369 (1887). The committee of a lunatic