People ex rel. Tierney v. Wilkins

Foster, J. This is a certiorari proceeding to review assessments on seventy-three parcels of real property, made by the assessors of the town of North Elba, Essex county, for the tax year 1940. A motion was made at Special Term to dismiss the petition and quash the writ herein, chiefly on the ground that the petition did not contain a proper allegation of overvaluation. This motion was denied and permission was given to file an amended petition. From the order of denial the defendant assessors appeal. The property in question was assessed in separate parcels for separate amounts. The original petition merely alleged as to overvaluation: “ Your petitioner further alleges that said assessments and each of them are erroneous by reason of overvaluation in that your petitioner’s property has been assessed on said roll at the sum of $784,950.00 which is more than the fair market [729] value thereof, and that the amount of said overvaluation is the sum of $196,237.00 and that in your petitioner’s opinion the fair market value of said property for purposes of taxation on said roll is $588,713.00.” The amended petition, assuming for the moment that an amendment was properly allowed, eliminated property assessed to the Lake Placid Club Educational Foundation but otherwise the form of the allegation of overvaluation remained the same, as may be seen from the following language: “ Your petitioner further alleges that said assessments and each of them are erroneous by reason of overvaluation in that your petitioner’s property has been assessed on said roll at the sum of $709,950.00 which is more than the fair market value thereof, and that the amount of said overvaluation is the sum of $177,487.50, and that in your petitioner’s opinion the fair market value of said property for purposes of taxation on said roll is $532,462.50.” Both petitions grouped all parcels together and alleged a total overvaluation without any statement of excess to be distributed to each parcel. This was insufficient. The validity of one assessment is completely independent of the validity of any other. (People ex rel. Ward v. Sutton, 230 N. Y. 339.) In the case cited the petition was saved because it stated in effect that the assessments complained of were made at the rate of 133 per cent of the full market value of the properties. There is no similar allegation in either of the petitions in this proceeding. It is said in the opinion below: “ The failure to detail them separately would not seem to be a jurisdictional defect so long as the percentage of reduction sought is substantially stated.” The term “ percentage ” is not used in the petitions involved here, and hence the court below can only have derived the idea envisaged from the use of this term by an arbitrary computation. Such a computation, however, could have been made in the Sutton case, and yet it was held there that only the further allegation to the effect that assessments were made at the rate of 133 per cent of the full market value saved the petition. If a computation alone was not available to uphold the petition in that case then it can hardly be used for that purpose here. The defect noted has been called an irregularity. (People ex rel. City of New York v. Keeler, 237 N. Y. 332, 335.) The question arises as to whether another amendment may be permitted. Doubtless under the strict rules of our former practice such a procedure would have been highly questionable, but a far more liberal view is now taken. (People ex rel. Di Leo v. Edwards, 247 App. Div. 331.) A petition for a certiorari order under the Tax Law is regarded [730] as akin to a complaint in an action, and amendable on motion. The Tax Law itself is regarded as remedial in character, and should be liberally construed to the end that a taxpayer’s right to have his assessments reviewed should not be defeated by a technicality. (.People ex rel. Denney v. Clark, 257 App. Div. 905.) We think, therefore, that the petition may again be amended, and in view of this determination we are not required to pass upon any other question. The order should be reversed on the law, with costs, and both petitions dismissed, with leave, however, to the respondent to serve an amended petition within five days after the entry of an order herein and upon the payment of twenty-five dollars costs; the appellants to file their return within ten days thereafter. Hill, P. J., Bliss and Heffernan, JJ., concur; Schenck, J., dissents in part in an opinion.