People ex rel. Ambroad Equities, Inc. v. Miller

Untebjmyeb, J. The defendants, Commissioners of Taxes and Assessments of the City of New York, appeal from so much of a final order as denies their motion to dismiss this proceeding, instituted by Rialto Estates, Inc., to review assessments on property in the borough of Manhattan for the tax year 1936. The petition was filed on June 1, 1936, by Rialto Estates, Inc., alleging that it “ was and still is the owner ” of the premises. The writ of certiorari was issued on June tenth. On the trial it appeared, however, that Rialto Estates, Inc., had conveyed the property on June 12, 1936, and that the vendee thereafter had paid the taxes for the year 1936. The deed recited that the property was conveyed “ subject to real estate taxes for the first half of 1936.” The defendants moved to dismiss the petition on the ground that the relator was not a party aggrieved or interested in the proceeding. The court thereupon accorded to the relator the opportunity to produce the contract under which the property was sold in order to establish the fact that some interest in any refund had been reserved to the relator. The relator, however, failed to produce the contract of sale or to establish by other evidence that it had reserved any interest in the refund. The court nevertheless denied the defendants’ motion to dismiss the proceeding. We are unable to perceive in what respect the relator is “ aggrieved ” by the assessment (Tax Law, § 290) or what interest it can assert in any refund of the tax which was paid by its vendee. If the assessment is reduced and a refund is directed, it must be made to the vendee who paid the tax and not to the relator. If on the contrary the assessment is not reduced, no claim can be asserted by the vendee against the relator on account of the existence or the amount of the tax, the property having been conveyed subject to the tax. Accordingly, under no possible circumstances will the relator benefit by a reduction of the assessment nor will it be aggrieved if the assessment is sustained. The proceeding, therefore, should have been dismissed. (New York Electric Lines Co. v. Gaynor, 167 App. Div. 314; affd., 218 N. Y. 417.) [264] )- To the extent appealed from, the order should be reversed, with twenty dollars costs and disbursements, and the proceeding dismissed. Martin, P. J., Cohn and Callahan, JJ., concur; Dore, J., dissents and votes to affirm.