People ex rel. Citizens' Lighting Co. v. Feitner

O’Brien, J. (dissenting):

I concur in the view expressed in the case of People ex rel. Zollikoffer v. Feitner (34 Misc. Rep. 299), that the special statutory writ not only permits a review of the jurisdiction and method of procedure, and an inquiry whether there has been a violation of any rule of law or any competent proof of all the essential facts, or a preponderance of proof against the existence of any of those facts, but also authorizes a redetermination of' all questions of fact upon evidence, taken, in part at least, by the Special Term, or under its direction, and thus what is called a review may become a proceeding in the nature of a new trial.”

I do not think, however, that it was intended that the relator should, as matter of right, have two trials, one before the commissioners and one before the court, my view being that where the facts have been fully and fairly presented before the commissioners, and they have reached a determination after the taxpayer has had his day in court, their determination is final. It is only where the determination of the tax commissioners is illegal or unequal or void, or is made upon insufficient evidence or is against the weight of evidence" or- arbitrary so that it appears that it was erroneous, that a rehearing or new trial may be had before the Special Term. I do not assent to the construction given to the statute that in every case as matter of right the relator is entitled to a rehearing. Such a construction would be burdensome in the extreme, would compel the Special Term to hear every application anew, would impair, if not *128destroy, the usefulness of the tax commissioners, and render their determination, though valid, equal and correct, a mere brutum fulmen. Such a construction is not warranted and should not be given to the statute.

I, therefore, dissent.

Order reversed and new hearing ordered, costs to appellant to abide event.