
    The People of the State of New York ex rel. The Town of Hempstead, and Hiram R. Smith, as Supervisor of Such Town, Relators, v. State Board of Tax Commissioners, Town of Oyster Bay and Town of North Hempstead, Respondents.
    (Supreme Court, Albany Special Term,
    December, 1915.)
    Costs — certiorari to review determination of state board of tax commissioners — order of Appellate Division reversed — remittitur of Court of Appeals amended — effect of stipulation as to costs.
    On appeal from an order of tbe Appellate Division entered on tbe bearing of a writ of certiorari to review a determination of tbe state board of tax commissioners made on nippeal by relators under section 175 of tbe Tax Law, which 'appeal was dismissed and tbe decision of tbe board of supervisors as to tbe equalization of tbe assessments for the year 1911 was affirmed, tbe Court of Appeals decided that tbe Appellate Division, whose order provided that relators recover •of respondents fifty dollars costs and disbursements and have Execution therefor, was without authority on said writ of sertiorari to determine disputed questions of fact involving the rights of the parties or to grant final judgment upon the facts found by it, but that said court should have reversed the determination of the state board of tax commissioners and remitted the proceedings to tbe state tax commission (tbe successors of said state board) for a new and further hearing upon the (merits, with costs in the Court of Appeals in favor of appellants. The original remittitur of the Court of Appeals provided as follows: “ That the order so appealed from be modified by providing in place of the findings, orders and directions tontained therein, that tbe determination of the state board of lax commissioners, • * • is reversed and set aside, and l,hat tbe proceeding be remitted to the state tax commission for a new and further hearing on the merits, with costs in favor of tbe appellants in this court,” and was amended by adding thereto tbe following: “the costs including disbursements therein provided shall abide the final determination of the proceeding and the amount of services and expenses of counsel in tbe proceedings shall be in all things subject to future order in the proceedings.” Pursuant to the order of the Court of Appeals a new and further hearing on the merits of the proceeding was had before the state tax commission and a stipulation in writing was entered into between the attorneys appearing in the proceeding and the supervisors of the several towns in the county of Nassau that the ratios which the assessed value of the real property located and assessed in said towns for the year 1911 bears to the full value thereof were as stated in said stipulation. On motion by relators to recover costs and disbursements, it was stated in the supporting' affidavits, and not denied, that it was agreed by all the parties and their attorneys that the amount of costs and disbursements to whieli relator town of Hempstead and its attorney were entitled, pursuant to section 178 of the Tax Law, should be left to the state tax commissioner to decide and that the question of said town recovering its costs and disbursements awarded by the Appellate Division should he left to the court to decide. The present motion is an attempt to make effective the other part of said agreement with respect to the costs and disbursements awarded relators by the Appellate Division, and should be granted, with ten dollars costs, as relators would have the right in the absence of agreement to present that question to the court for determination unless they had agreed as a part of the settlement to waive their rights to enforce the payment of costs and disbursements awarded to them.
    Motion to recover costs and disbursements.
    Albert T. Davison. (James K. Foster, of counsel), for relators.
    Dowsew & Parsons, for town of North Hempstead.
    Uterhart & Graham (Alfred M. Schaffer, of counsel), for the town of Oyster Bay.
   Chester, J.

-The proceeding in which the relators are seeking to recover their costs and disbursements was a writ of certiorari heard by the Appellate Division of the Third Department in the first instance, to review the determination of the state hoard of tax commissioners made on an appeal by the relators to that board pursuant to section 175 of the Tax Law (Laws of 1900, chap. 62). The determination of such state board which was reviewed by said writ was one which dismissed said appeal and affirmed the decision of the board of supervisors as to the equalization of the assessments for the year 1911.

On the hearing of the writ, the Appellate Division decided (People ex rel. Town of Hempstead v. Tax Commissioners, 163 App. Div. 803) that the determination of the state board of tax commissioners was not supported by the evidence and made its own finding of fact that the percentages which the assessed value of the real property in each of the three towns of Nassau county bore in 1911 to its full value are, fifty per cent for the town of Hempstead, twenty-five per cent for the town of North Hempstead and twenty-five per cent for the town of Oyster Bay, being the only three towns in the county of Nassau. With respect to the costs, the order of the Appellate Division under such decision contained the provision, “ that the relators recover from the respondents, the Town of Oyster Bay and the Town of North Hempstead, the sum of fifty ($50) dollars costs together with their disbursements herein to be taxed by the County Clerk of the County of Albany and that the relators have execution therefor.”

Pursuant to such order the relators taxed their costs and disbursements as follows: Costs, $50; disbursements, for printing cases and points, $1,192.99; total, $1,242.99.

The town of Oyster Bay and the town of North Hempstead appealed to the Court of Appeals from the order of the Appellate Division and that court decided (214 N. T. 594) that the Appellate Division did not have the authority on certiorari to review the action of the state hoard of tax commissioners, to determine disputed questions of fact involving the rights of the parties or to grant final judgment upon the facts so found hy it, but that the Appellate Division should have reversed the determination of the state hoard of tax commissioners and remitted the proceedings to the state tax commission (the successors of said state hoard) for a new and further hearing upon the merits, with costs in the Court of Appeals in favor 'of the appellants. The original remittitur of the Court of Appeals provided as follows: ‘ ‘ That the order so appealed from be modified by providing in place of the findings, orders and directions contained therein, that the determination of the state board of tax commissioners, dated June 20th, 1913, is reversed and set aside and that the proceeding be remitted to the state tax commission for a new and further hearing on the merits, with costs in favor of the appellants in this court. ’ ’

Thereafter a motion was made in the Court of Appeals for an order amending such remittitur, which motion was granted and the court amended the same (215 N. T. 698), by adding thereto the following: “ the costs including disbursements therein provided shall abide the final determination of the proceeding and the amount of services and expenses of counsel in the proceedings shall be in all things subject to future order in the proceedings.”

Pursuant to the order of the Court of Appeals a new and further hearing on the merits in the proceeding was had before the state tax commission. After several days hearing a stipulation in writing was entered into between the attorneys appearing in the proceeding and the supervisors of the several towns in the county of Nassau that the ratios which the assessed value of the real property located and assessed in said towns for the year 1911 bears to the full value thereof is as follows: Town of Hempstead, fifty per cent, town of North Hempstead 27.4 per cent, town of Oyster Bay 27.4 per cent, and that the assessments in said towns be equalized according to the foregoing ratios in lieu of the ratio established by the board of supervisors in said county in 1911 which table of ratios is accepted as a compromise and settlement of said appeal and that the state tax commission may enter an order in this proceeding in accordance with this stipulation as their decision. Pursuant to this stipulation such an order was entered by said board.

It is alleged in the affidavits in support of this motion and not denied that ‘£ it was agreed by all the parties and their attorneys that the amount of costs and disbursements to which the town of Hempstead and its attorney were entitled, pursuant to section 178 of the Tax Law, should be left to State Tax Commissioner Walter H. Knapp to decide, and that the question of the town of Hempstead recovering its costs and disbursements awarded by the Appellate Division of the Third Department should be left to the court to decide. ’ ’

It appears here that a portion of this agreement has been given effect, for pursuant to it the state tax commission in making its order and determination, awarded to the town of Hempstead an amount to cover costs and disbursements of its appeal to that board. This motion is made by the relators and is ah attempt to make effective the other part of such agreement with respect to the costs and disbursements awarded to them by the Appellate Division. In my opinion the relators would have the right in the absence of any agreement to present that question to the court for determination, unless they had agreed as a part of the settlement to waive their right to enforce the payment of the costs and disbursements awarded to them. By the amended remittitur in the Court of Appeals such costs and disbursements were made to abide the final determination of the proceedings. The proceeding has eventuated in favor of the. relators and they have obtained substantially the same relief which they tried to obtain by their appeal to the state board and which the Appellate Division undertook to grant them.

The state board of tax commissioners would have no power to grant the relief as to costs which the relators seek on this motion and the only court to which the application for relief, can be made seems to me is to the Supreme Court sitting at Special Term.

The application to the Court of Appeals for the relief here sought was denied. But this denial was long-after the delivery of its remittitur on the decision made by it in the proceeding and the denial was on the ground that the proceeding was not then in that court. That decision does not stand in the way of this motion in the proper court.

The Court of Appeals having in the amendment which it made to its remittitur provided that the costs and disbursements in the Appellate Division shall abide the final determination of the proceeding and such determination having now been had in favor of the relators it seems to me fair that the costs and disbursements should fall upon the appellants in that court, in accordance with its direction.

The motion is granted with ten dollars costs.

Motion granted, with ten dollars costs.  