People ex rel. West v. City of Syracuse — 28 Misc. 95

Majority

p. 95

The People ex rel. Eugene West et al., Relators, v. The City of Syracuse, Defendant.

(Supreme Court, Onondaga Special Term,

June, 1899.)

Headnote

Taxation — ¡Review of an assessment permitted after the statute had run.

Where a city charter requires an application for a writ of certiorari in review of a paving assessment to be made within the brief time of two weeks from the city treasurer’s first publication of a notice that he has received the- assessment-roll, the court will, even after the lapse of such two weeks, permit interested property holders to make themselves parties to a writ which was issued in time, where they agree not to raise any objections to the assessment, as such' a course does not injure the city and may prevent additional and unnecessary litigation.

This is an application upon the part of Edward A. Powell and others to be made parties as relators to the above-entitled proceeding.

Francis B. Gill, for application.

James E. Newell, opposed.

The writ of certiorari in this proceeding was sued out for the purpose of having declared void and illegal or modified a certain assessment for laying a pavement upon West

p. 96

Genesee street in the city of Syracuse. Under section 145 of the city charter it is provided that such writ must be applied for before the expiration of two weeks from and after the publication by the treasurer of said city of the first notice required to be published by him to the effect that the assessment-roll for such improvement had ■ been received by him. The writ was applied for and obtained by the original relators within such' time. The present application by various property-owners to be made additional parties to said proceeding was not made until after the expiration of such period.

Upon the argument the petitioners stated that if made parties they would waive any of the grounds stated in their moving papers as reasons for having said assessments declared void other than those stated in the original petition and writ, and, therefore, the only important question left is whether they should be made parties.

The- Statute of Limitations, urged by defendant, is a somewhat stringent one, and I feel disposed to go to a reasonable extent as a matter of discretion in allowing the additional property-owners to be made parties. If the final result of the proceeding should be upon the line somewhat suggested in the original petition and writ of reapportioning certain parts of the assessment there would be no objection to having these additional parties brought in. In fact it would be an advantage. Upon the other hand, if the rer lators should secure a final determination that the assessment was entirely void and illegal defendant would not be much embarrassed by having these additional parties brought in. Under the provisions of the charter the court would have the right if it saw fit, if it should find that the assessment was illegal, to set it aside as to all property-owners even if they were not made parties. Again, the petitioners would probably have the right to raise the question of the illegality of the assessment within certain limits by another action than this, and if that is so it would be better to have the question tried out in one proceeding rather than in two.

Under these circumstances, I have concluded to grant the application. It is granted, however, upon the condition that the defendant shall have the right by its return and answer to raise the-same questions and defenses as to the petitioners which it could raise if they had sued out an original writ of certiorari instead of becoming parties by amendment to one already obtained.

Ordered accordingly.