People ex rel. Long Island Railroad v. Wolf — 152 A.D. 173

Majority

p. 173

The People of the State of New York ex rel. The Long Island Railroad Company, Respondent, v. Abram Wolf and Others, Constituting the Board of Assessors of the Town of North Hempstead, Appellants.

Second Department,

July 25, 1912.

Headnote

Certiorari — review of assessments — return — appeal — resettlement of order.

The officers making a return to a writ of certiorari are required under the Tax Law to procure certified or sworn copies of the assessment roll or papers, or of such portions thereof as may be called for by the writ, without any reference to fees or other compensation.

p. 174

The fact that an order directing a return to a "writ oí certiorari requires the defendant to do more than is necessary does not justify an appeal; the matter may be remedied by a motion for a resettlement of the order.

Appeal by the defendants, Abram Wolf and others, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the-county of Nassau on the '20th day of February, 1912, directing the defendants to file a proper return to a writ of certiorari.

George B. Stoddart, for the appellants.

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

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.)

p. 175

The order appealed from should he 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.