In re City of New York — 102 N.Y.S. 1

Majority

p. 1

(116 App. Div. 815)

In re CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department.

January 18, 1907.)

Headnote

Cebtiouari—Petition—Waives or Insufficiency.

Where, on certiorari to review the action of tax assessors, the petition was insufficient, but the assessors, instead of moving to dismiss it and to quash the writ, joined issue by making return to it, the insufficiency of the petition was waived.

[Ed. Note.—Por cases in point, see Cent. Dig. vol. 9, Certiorari, § 83.]

Appeal from Special Term, Kings County.

Application by the city of New York for certiorari to review the action of the assessors of the town of Carmel, Putnam county, in assessing relator’s real estate for taxation. From a judgment quashing the writ, relator appeals. Reversed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

I. J. Beaudrias, for appellant.

George E. Anderson, for respondent.

The court quashed the writ on the ground that the petition did not specify each parcel of the petitioner’s land separately and claim that it was overvalued, but grouped them and alleged that the petitioner’s land was overvalued.

The petition is only to get the writ, and if it be insufficient to authorize the writ to be granted a motion should be made to dismiss it and

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quash the writ before making return. If instead the assessors join issue on the writ by making return to it they waive the insufficiency of the petition. Such is the present case.

The order should be reversed. All concur.