Hyperlawhypertext legal database People ex rel. Brooklyn Elevated Railroad v. Board of Assessors 75 N.Y. St. Rep. 1165

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People ex rel. Brooklyn Elevated Railroad v. Board of Assessors

75 N.Y. St. Rep. 1165 Court N.Y. App. Div. Decision date 1896-11-20 English

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p. 1165
The People ex rel. Brooklyn El. R. Co. v. Board of Assessors. The People ex rel. Kings Co. El. R. Co. v. Same.
(Supreme Court, Appellate Division, Second Department,
Nov. 20, 1896.)

Headnote

Taxation—Certiorari—Amendment to petition.
A petition for a writ of certiorari to review an assessment alleging that relator was erroneously assessed, and that other property on the same roll was assessed at a less proportionate value, gives the court jurisdiction over the cause, and it can grant leave to amend the petition" so as to specify the instances of the disproportionate valuation, as required by Laws 1896, e. 908, § 250.
Appeal from special term, Kings County.
Separate writs of certiorari by the Brooklyn Elevated Bail-road Company and the Kings County Elevated Bailroad Comnany to review an assessment of relator’s property for taxation. From an order granting leave to amend the petition, defendant appeals.
Rollin A. Breckenridge, for appellant; Eugene Treadwell, for respondent.

—The relator presented its petition, alleging that it was illegally and erroneously assessed, and prayed for the issue of a writ of certiorari to review such assessment. On its petition the writ was granted. The petition, besides allegations of other illegality and error in the assessments, stated that other and personal property in the city, upon the same roll, was assessed at less proportionate value than that assessed on the real estate of the petitioner. The petition failed to specify the instances in which such inequality existed, and the

p. 1166
extent thereof, as required in section 350 of chapter 908 of the Laws of 1896. For this defect the appellants moved to strike out the petition in the allegations that other real and personal property was assessed at a less proportionate value than the real estate of the petitioner. On the hearing of this motion the court granted the petitioner leave to amend its petition by specifying the instances and extent of disproportionate valuation. From the order granting such leave this appeal is taken.

By section 251 of the act cited, on the presentation of the petition the justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment. The certiorari thus allowed to issue is not defined, and must be the ordinary common-law writ prescribed by the Code, except as modified by the statute which permits the taking of testimony as the alleged grievances. By section 723, Code, Civ. Prac., the court may, at any stage of the action, in furtherance of justice, amend any process, pleading, or other proceeding. This power is confined to actions, and does not include special proceedings as a class. In re City of Buffalo, 78 N. Y. 372 . But in section 1997 the provisions of the Code relating to amendments are inade applicable to special proceedings instituted by state writ, including the writ of certiorari. Enough was stated in the petition to give the court jurisdiction to issue the writ. Having jurisdiction, we think it was within its power to allow an amendment to the petition initiating the application as well in proceedings subsequent to the issue of the writ, where its power would have been unquestionable. People v. Board of Sup’rs of Dutchess Co., 135 N. Y. 522 .

Order appealed from should be affirmed, with $10 costs and disbursements.

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