
    The People ex rel. Phœnix Assurance Company, Limited, of London, Relator, v. Frank A. O’Donnel et al., as Commissioners of Taxes and Assessments of the City of New York, Defendants.
    (Supreme Court, New York Special Term,
    January, 1907.)
    Costs — Costs on certiorari — Amount.
    Where the return to a writ of certiorari to review an assessment for taxation raises no issue of fact but admits the illegality of the assessment, a notice of trial is' neither necessary nor proper; and no more than twenty-five dollars costs should be awarded to the relator.
    Proceedings upon certiorari to review an assessment of $578,200, made by the defendants on the personal property of the relator.
    Rumsey, Shepard & Ingalls (David Rumsey, of counsel), for the relator.
    William B. Ellison, Corporation Counsel (William H. King, of counsel), for the defendants.
   Giegerich, J.

This certiorari proceeding was brought to review an assessment of $578,200 made by the defendants for the year 1905 on the relator’s personal property, the petition alleging that the assessment is erroneous in the entire amount in that the defendants had proceeded contrary to law in fixing the assessment. Precisely the same question was presented in other proceedings theretofore brought to review assessments for the year in question made against certain insurance companies, which resulted in the cancellation of the assessments. The return admits the illegality of the assessment in suit, and the defendants served upon the attorneys for the relator, with the return, a written offer to allow a final order to be taken and entered herein by the relator adjudging that the assessment is illegal and erroneous, and directing that it he canceled, with twenty-five dollars costs to the relator. Such offer was not accepted and the relator’s attorneys served upon the corporation counsel a notice of trial and notice of motion for a preference. The proceeding was placed upon the preferred calendar, and when reached in its regular order the corporation counsel conceded that the relator was entitled to a final order canceling the assessment, and moved for such order, with twenty-five dollars costs. The relator, on the other hand, urged that it was entitled to full costs, and the only question which arises is with respect to the amount of costs which should be awarded. Costs in these proceedings are regulated by section 254 of the Tax Law, as amended by chapter 281 of the Laws of 1905, which, so far as applicable, provides: “If the writ shall be quashed or the assessment confirmed, or if the assessment complained of shall be reduced by an amount less than half the reduction claimed before the assessing officers, costs and disbursements shall be awarded against the petitioner. If the assessment shall be induced by an amount greater than half the reduction claimed before the assessing officers, costs and disbursements shall be awarded against the tax district represented by the officers, whose proceedings may be reviewed. The costs and disbursements shall not exceed those taxable in an action upon the trial of an issue of fact in the Supreme Court.” The corporation counsel contends that under the foregoing provisions the amount of costs is discretionary with the court, but without passing upon the point I am of the opinion that the relator is entitled to no more costs than offered by the defendants, viz., twenty-five dollars. The return does not deny any of the allegations of the petition nor does it set up any new matter; on the contrary, it admits that the assessment is illegal. An issue of fact did not, therefore, arise, and hence the service of a notice of trial was neither necessary nor proper. Code Civ. Pro. § 977; Cohen v. Cohen, 72 Hun, 393. There was thus no issue of fact to try, the application for a final order to cancel the assessment being merely made upon the return pursuant to section 253 of the Tax Law, which provides: “If it shall appear upon the return * * * that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the petition, the court may order such assessment, if illegal, to he stricken from the roll.” In this view there was no trial of an issue of fact, and consequently the plaintiff is not entitled to a trial fee. My conclusion, therefore, is that the relator is entitled to a final order canceling the assessment, with twenty-five dollars costs.

Ordered accordingly.  