People ex rel. Church of Assumption v. Dimond

Majority

p. 459

The People of the State of New York ex rel. The Church of the Assumption, Respondent, v. James Dimond and James A. Barker, as Assessors of and Composing the Board of Assessors of the Village of Peekskill, and the Village of Peekskill, Appellants.

Second Department,

November 22, 1907.

Headnote

Tax — certiorari — Statute of Limitations— section 109, Village Law, construed.

Section 109 of the Village Law, providing that an application for a writ of certiorari to review an assessment roll may be made within fifteen days in the manner provided by the Tax Law (§ 251), while permissive, in so far as it permits said application to be made within fifteen days, does not permit it to be made thereafter..

Even though an assessment be void it cannot be reviewed by certiorari if the petition be not presented within fifteen days after completion of the roll.

Sepabate appeals by the defendants, the Village of Peekskill, and by J ames Dimond and another, as assessors, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 31st day of .August, 1907, denying their motions to dismiss a writ of. certiorari granted to review a certain assessment.

Nathan P. Bushnell [Edward G. Halsey with him on the brief], for the appellants.

James Dempsey, for the respondent.

This is an appeal from an ordér denying a motion to dismiss a writ of certiorari issued to review an assessment of the relator’s real, property made by the assessors of the village of Peekskill, The motion was made on the ground that the petition for the writ was not presented within fifteen days after the completion and .filing of the assessment roll and the posting and publication of notice thereof.

The decision of this case depends on the construction and application of section 251 of the Tax Law (Laws of 1896, chap. 908) and section 109 of the Village Law (Laws of 1897, chap. 414). There is no question that this ,is the statutory proceeding to review an

p. 460

assessment authorized by the Tax Law; the writ is returnable to a Special Term of the Supreme Court. blor is there any question that said section 251 of the Tax Law requires the presentation of the petition within fifteen days after the completion and filing of the assessment roll and the posting and publication of notice thereof. But it is-contended that a village is not a tax district, that the general Tax Law has no application to a village, and that this proceeding is governed by the Village Law and by section 109 thereof, which section reads as follows : “ An- application for a writ of certiorari to review, the assessment-roll may be made within such fifteen days in- the manner provided by the Tax Law.” It is contended that the language quoted is permissive, and that the petition for the writ may be presented after the expiration of said fifteen days in case sufficient excuse be -shown. Said section 109 is permissive in that it permits said application to be made within said fifteen days, but it does not. permit one- to be made thereafter. But for the statute the petitioner would have no right to the remedy sought to be invoked. The statute permits the exercise of that right within fifteen days after the completion and filing of the assessment roll, and to be available the right must be exercised within that time.^[1] It is not necessary to consider whether the provisions of the general Tax Law relating to reviews of assessments by certiorari would otherwise be applicable, for said provisions are expressly made applicable by said section 109 of the Village Law. There can-be no doubt as to the meaning of said section; but if there otherwise were doubt on the subject, it,would be entirely removed by reading it in connection with the said section 251 of the general Tax- Law.

It- is urged that the assessment in question is void.. Even though that be so, whatever other remedies the relator may have, it cannot have a special statutory remedy without availing itself thereof within the period prescribed by the statute.

The order should be reversed and the motion granted.

Woodwabd, Jenks, Hookee and Bioh, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and .motion granted, with costs. ' .

* See Village Law, § 108, 109:— [Rep.