People ex rel. Sutphen v. Feitner

Barrett, J. (dissenting):

The only reason given for denying to the relator a writ of certiorari is the insufficiency of his application for a reduction of the assessment. It is held, in substance, that this application must set forth the facts showing the assessment to be illegal, and that the court will interfere only in case the commissioners have refused to give proper force and effect to the facts thus stated. Section 895 of the charter (Laws of 1897, chap. 378), however, merely requires that the application shall be made in writing, and shall state “ the ground of objection ” to the assessment. The “ ground of objection ” *548is one thing, and the facts in support of that ground quite another. The act even employs the singular, “ ground,” instead of the plural. How that word can reasonably be interpreted to mean the underlying facts showing the illegality I am quite unable to see.

It cannot have been meant that the relator should, in his written statement specifying the “ ground of objection,” go into every fact and circumstance upon which he bases his claim to revision, or which would be relevant upon the trial of an issue of overvaluation or inequality. That—¡mould be quite impracticable. It is intended merely that he shall set forth, in general' termsj'the reason .why —■ the point in which — he thinks the action of the commissioners erroneous. With their attention thus called to the matter it is their duty to re-examine the question. But the application was merely meant to give them a subject for further consideration — not the detailed facts upon that head. This view is emphasized by section 898 of the charter. That section provides that the board of taxes 'and assessments shall appoint one or more deputy tax commissioners, who shall receive applications for the revision and cancellation of any assessments * * '* take testimony on such applications, and reduce the same to writing, and when so reduced to writing transmit such applications and testimony, together with his recommendation, to the board,” etc. The section further provides that the board may prescribe the time and place for hearing such applications in the City Record, and at least one newspaper irr each borough. The testimony taken upon such hearings is to form part of the record of the assessment. The application is thus plainly treated as a mere complaint — not as a presentation of the relator’s case. The relator is to have a hearing upon this complaint, with an opportunity to produce his evidence. In the present case the commissioners did- not give the relator this hearing. They chose to dispense with it. Whether they could legally dó so need not be considered. If, as I think, the relator’s application was sufficient, he has done all that he is required to do in order to entitle him to a writ of certiorari; and whatever other remedy he may have had is immaterial.

I, therefore, think that the order should be reversed, and'the proceeding remitted to the Special Term for a hearing-upon the merits.

Qrder affirmed, with costs.