People ex rel. Warren v. Carter — 53 N.Y. Sup. Ct. 444

Majority

p. 444

PEOPLE ex rel. NATHAN B. WARREN and Others, Respondents, v. EDWARD CARTER and Others, Assessors of the City of Troy and Another, Appellants.

Headnote

Proceedings to review illegal and unequal assessments under chapter 269 of 1880 — costs on appeal are to be given or withheld, in the discretion of the court, under section 3239 of the Code of Civil Procedure.

Where an appeal is taken from an order, judgment or determination, made in proceedings instituted under chapter 269.of 1880, for the review and correction of illegal, erroneous or unequal assessments, costs are to he given or withheld, in the discretion of the court, under section 3239 of the Code of Civil Procedure.

The People ex rel. Adon Smith, Jr., as Committee, etc., v. The Commissioners of Taxes and Assessments of the City of New York ( 101 N. Y., 651 ) followed.

Appeal by tbe relators from an order entered in Rensselaer county, on tbe 16tb day of September, 1887, vacating tbe taxation of costs bad before tbe county clerk of Rensselaer county, and directing liim to tax tbe costs of an appeal from a final determination in tbe above entitled matter at ten dollars and disbursements.

Tbe relators by a writ of certiorari under chapter 269 of tbe Laws of 1880, caused to be reviewed at a Special Term of tbe Supreme Court,- certain assessments made against tbe relators’ property. Tbe Special Term reduced such assessments and directed a certain sum of money to be paid back to tbe relators by. tbe city of Troy. From tbis determination an appeal was taken to tbe General Term. • Tbe determination of tbe court below was there affirmed. Upon the order of affirmance tbe relators entered a judgment of affirmance, and their costs were taxed at seventy-nine dollars and seventy-two cents.

G. B. Wellington, for tbe appellants.

B. A. Parmenter, for tbe respondents.

Tbe appellants, as relators, instituted a proceeding pursuant to chapter 269 of tbe Laws of 1880, to review an assessment, on property owned by them, as made by tbe assessors of tbe city of Troy, which resulted in a determination by tbe court in their favor. The determination thus made was, on appeal to tbis court, affirmed with costs, in favor of tbe relators against tbe assessors.

p. 445

Tlae question now presented is, were tbe relators entitled to tax costs of tbe appeal as from a judgment or as from an order % It bas been tbe practice of attorneys quite generally to regard proceedings, taken under tbe act herein referred to, as special proceedings, and therefore to tax full costs under section 3240 of tbe Code of Civil Procedure. Special Term decisions have also been rendered to tbe same effect. Tbe question, however, is no longer an open one, as tbe Court of appeals have settled tbe practice by determining that costs are to be given or withheld under section 3239 of tbe Code of Civil Procedure. (People ex rel. Adon Smith, Jr., etc., v. Commissioners of Taxes, etc., 101 N. Y., 651 .)

Decisions of Special Term, directing that tbe costs be taxed at ten dollars, with disbursements added, affirmed, with ten dollars costs and printing' disbursements.

Landon and Fish, JJ., concurred.

Order as to costs affirmed, with ten dollars costs and printing disbursements.