People ex rel. Buffalo Railway Co. v. Priest

Parker, P. J.: We have already settled in this court- that the. city of Buffalo has • no interest in the controversy which was being litigated in this proceeding (People ex rel. Rochester Tel. Co. v. Priest, 95 App. Div, 44), and we reversed an order that under ■ similar circumstances brought in the city of Rochester as á party defendant to such an inquiry.. Clearly, within the reasoning of that cáse, it was error to ' direct the writ to run to the city of Buffalo in this case; but the question remains, should the order be sustained so. far as-;it refers to the local board of assessors of the city of Buffalo ? We are of the opinion that it should not, The motion is made by the city of' Buffalo, and it asks that it alone be brought in to defend against the relator’s claim. As we have seen, the city has. no standing whatever in court to defend this proceeding. It had no right to make any (motion whatever therein, and it was, therefore, error to entertain it. Moreover,, such motion was delayed until the question, which the local board of assessors are now required to raise and have examined, had been litigated and final judgment had been rendered thereon, and the corrected assessment had been reported to the local assessors and changed upon their rolls. So far as this record discloses,' the local- board of assessors itself -has never made any application to- be brought in, although some of its members were sworn upon the hearing had before the judgment was ren [265] dered. And the notice of motion made by the city did not ask to bring them in. Under these conditions we are of the opinion that whatever may be the right of the local assessors to be brought in as a party to such an inquiry while it is pending, on their Own motion, the order from which the appeal was taken was erroneous and should be reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements,, and motion' denied, with ten dollars costs.