in the individual case of the particular petitioner, and by Laws 1880, chap. 269, they were properly joined.
3. Same—Review—Return to writ of certiorari not conclusive.
The return to a writ of certiorari to review assessments is not conclusive or final, and when the parties desire to give evidence in support of their petition the court may take evidence which will constitute a part of the proceedings upon which the determination of the court- shall be made.
8. Same—When a writ is a matter of right.
The only condition to the allowance of the writ is that it shall be allowed within fifteen days after the completion and delivery of the assessment-roll and the posting and publishing notice thereof as required by the act. These are facts which can be disputed by evidence in the face of a return to the contrary.
Appeal from an order made at the Kings county special term denying a motion to quash a writ of certiorari and ordering a reference to take testimony.
On January 11, 1887, the respondents, upon petitions alleging illegality, erroneousness and inequality, and setting forth the grounds thereof, in certain assessments for real and personal property made against them by the appellants, applied for and obtained, pursuant to chapter 369, Laws of 1880, the allowance of a writ of certiorari commanding appellants to return such assessments and other proceedings to the special term on the 35th day of January, 1887. The order allowed the writ to be served on or before January 15, 1887. Return to the writ was made on January 29, 1887, after an adjournment to that day upon consent. Upon the return and on the writ, petitions, order, etc., a motion was made by the appellants to quash the writ and a counter-motion by the respondents that evidence be taken by the court, or a referee appointed for the purpose, before the matter was finally disposed of. The former motion was denied and the latter granted, and from the order thereon this appeal is taken.
W. J. Foster, for app’lts; Johnes, Benner & Wilcox, for resp’ts.
If the writ of certiorari should be quashed, there could be no trial according to chapter 269, Laws of 1880.
The several petitioners aver an inequality in the assessment in respect to the individual case of the particular petitioner, and by the act they are properly joined. The return is not final, and when the parties desire to give evidence in support of their petition, the court may take evidence. This testimony, by the act, “shall constitute a part of the proceedings upon which the determination of the court shall be made.” The act, therefore, was designed to destroy, in respect to the writ of certiorari to review assessments, the conclusiveness of the return. A new tribunal was made with power to review the case upon the return,