People ex rel. 711 Corp. v. Chambers — 302 N.Y. 161

Majority

p. 161

The People of the State of New York ex rel. 711 Corporation, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.

Argued January 10, 1951;

decided January 18, 1951.

p. 162

Sidney S. Levine for appellant.

It was reversible error for the Appellate Division to hold that relator had not made out a prima facie case. (People ex rel. Sheffield Farms Co. v. Lilly, 295 N. Y. 354 ; Matter of Levinson Corp. [Joint Bd. of Cloak, Suit, Skirt & Reefer Makers’ Union], 299 N. Y. 454 ; People ex rel. Manhattan Square Beresford, Inc., v. Sexton, 284 N. Y. 145 ; People ex rel. Van Rensselaer Estates, Inc., v. Goldfogle, 285 N. Y. 582 .)

John P. McGrath, Corporation Counsel (Morris Handel and Imre Schwarz of counsel), for respondents.

Relator’s entire case, consisting of self-contradictory and factually unsupported opinion testimony by a single interested witness, was entitled to no credibility as a matter of law, particularly in view of the conclusive evidence in the record as to sales, mortgage and actual earnings. (People ex rel. Wallington Apts., Inc., v. Miller, 288 N. Y. 31 ; Pollock v. Pollock, 71 N. Y. 137 ; Morison v. American Tel. & Tel. Co., 115 App. Div. 744 ; Matter of Fifth Madison Corp. [N. Y. Tel. Co.], 297 N. Y. 155 .)

Since the Appellate Division order fails to make the specifications required by section 602 of the Civil Practice Act, we are compelled to presume that questions of fact were not considered and to “ treat the Appellate Division order as being a determination on the law only ” (People ex rel. Sheffield Farms Co. v. Lilly, 295 N. Y. 354 , 356; Rochette & Parzini Corp. v. Campo, 301 N. Y. 228 ). So regarded, the order cannot be sustained. Questions of fact as to the value of the premises during the taxable years in question are presented by the record. The order is accordingly reversed, without costs, and the matter remitted to the Appellate Division “ for determination upon the questions of fact raised in that court ” (Civ. Prac. Act, § 606).

Loughrae, Ch. J., Lewis, Coeway, Desmoed, Dye, Fuld and Froessel, JJ., concur.

Ordered accordingly.

Cases cited

People ex rel. Sheffield Farms Co. v. Lilly 295 N. Y. 354 N.Y. 1946-05-29 at 356 p. 162
In re the Arbitration between Harold Levinsohn Corp. & Joint Board of Cloak, Suit, Skirt & Reefer Makers' Union 299 N. Y. 454 N.Y. 1949-07-19 p. 162
People ex rel. Manhattan Square Beresford, Inc. v. Sexton 284 N. Y. 145 N.Y. 1940-10-18 p. 162
People ex rel. Van Rensselaer Estates, Inc. v. Goldfogle 285 N. Y. 582 N.Y. 1941-02-27 p. 162
People ex rel. Wallington Apartments, Inc. v. Miller 288 N. Y. 31 N.Y. 1942-04-23 p. 162
Pollock v. Pollock 71 N. Y. 137 N.Y. 1877-11-13 p. 162
In re Fifth Madison Corp. 297 N. Y. 155 N.Y. 1948-01-15 p. 162
Rochette & Parzini Corp. v. Campo 301 N. Y. 228 N.Y. 1950-07-11 p. 162