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The People of the State of New York ex rel. The City of New York v. William O'Toole, Impleaded with Robert Muh and Others, Composing the Board of Assessors of the City of New York, Defendants The People of the State of New York ex rel. The City of New York v. Julia E. Goossen, Impleaded with Robert Muh and Others, Composing the Board of Assessors of the City of New York, Defendants The People of the State of New York ex rel. The City of New York v. Sandrock Realty Company, Impleaded with Robert Muh and Others, Composing the Board of Assessors of the City of New York, Defendants The People of the State of New York ex rel. The City of New York v. Bronx Bath Company, Impleaded with Robert Muh and Others, Composing the Board of Assessors of the City of New York
Laughlin, J.:
No objection was or is taken to combining in a single application motions in the four proceedings, and, therefore, that irregularity need not be considered.
These are certiorari proceedings to review awards made by _ the board of assessors of the city of New York for damages alleged to have been caused by the construction of the approach to the bridge over the Harlem river at Willis avenue. Returns to the writs were duly made and filed by the assessors. On application of the claimants, who are parties to the proceed- - ings, the corporation counsel stipulated that certain correctións be made in the returns, but he refused to accede to their . request that the returns be amended by setting forth certain evidence which the claimants asserted was received and considered by the assessors but not set forth, in the returns. Instead of applying for a further return the claimants applied at Special Term for an order amending the returns in the particular to which reference has been made.. The evidence on the part of the claimants upon which it was contended that certain evidence was considered by the assessors which was not set forth in the returns was not uncontroverted; but if it had been the court was without authority to make a return for the assessors, which is the effect of the order incorporating in the return a recital that certain evidence was considered by them.- (Code Civ. Proc. §§ 2134, 2135; People ex rel. Higgins v. Grant, 58 Hun, 158; People ex rel. Joline v. Willcox,
198 N. Y. 433.) The only authority of the court in such matters is to direct a further return to be made by the board, body or officer whose action is sought to be reviewed; and in the event that the ■ return is false the only remedy of any one aggrieved thereby is an action for a false return. (People ex rel. Lester v. Eno,
176 N. Y. 513.) .The theory upon which the claimants seek to sustain the right of the court to amend the return is that the
[135] members of the board of -assessors who made the determinations sought to be reviewed are no longer in office; but that would be no answer to an application for.a further return. (Code Civ. Proc. § 2136.) It is also contended on the part of the respondents that authority for the order is found in the provisions of section 2139 of the Code of Civil Procedure. That section, however, does not authorize the court to make or to amend a return. It merely provides for the use of affidavits on the hearing in certain instances, but clearly not in a case like the one above.
It follows that the order, in so far as it purports to correct or . amend the return of the board of assessors with respect to matters not covered by the stipulation of the attorneys for the respective parties, should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order reversed to the extent stated in opinion, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order to be settled on notice.
