Hyperlawhypertext legal database People ex rel. Church of the Holy Communion v. Assessors of Westchester 6 N.Y. St. Rep. 744

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People ex rel. Church of the Holy Communion v. Assessors of Westchester

6 N.Y. St. Rep. 744 Court N.Y. Gen. Term Decision date 1887-02-15 English

Delivered by Dykman, J.

Contents

Majority

p. 744
People ex rel. The Church of the Holy Communion v. Assessors of the Town of Greenburgh in the County of Westchester.
(Supreme Court, General Term, Second Department,
Filed February 15, 1887.)

Headnote

Certiorari to review assessment—Returnable before special term— Laws 1880, chapter 269.
A writ of certiorari issued under chapter 269, Laws 1880, to review an assessment of real property, must he made returnable at a special term int the judicial district in which the assessment complained of was made.
A motion to dismiss the proceeding herein in the general term and to strike the cause from the general calendar upon the ground that the certiorari should have been returnable at special term.
John B. Pine, for relator; M. G. Hart, for resp’t.

This proceeding was instituted for the procurement of a writ of certiorari under chapter 269 of the-laws of 1880 to review an assessment of real property, which the relator considers erroneous.

The writ was allowed and issued and a return was made thereto by the defendants and the cause was placed upon the calendar of the general term at Brooklyn for December, 1886.

Thereupon a motion was made by the defendants at the general term to strike the cause from the calendar because the writ should have been made returnable at a special term of the court.

Our examination of the statute convinces us that the-motion must prevail. The second section of the act contains a plain and specific rquirement that the writ shall be made returnable at a special term in the judicial district in which the assessment complained of was made.

The unequivocal intention of the legislature to send the hearing upon these writs to the special term in the first, instance is extracted from the fourth section of the act, which invests the court with power to take testimony if it shall appear necessary for the proper disposition of the matter, and that could not be done at the general term under any practice now established.

The motion should be granted, with ten dollars costs.

Barnard and Pratt, JJ., concur.