
    People ex rel. Manice DeF. Lockwood et al., Respondents, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Appellants
    Argued May 19, 1941;
    decided July 29, 1941.
    
      William C. Chanler, Corporation Counsel (.Arthur H. Goldberg, Arthur A. Segall and Morris Handel of counsel), for appellants.
    The court was without jurisdiction to review the supplemental assessment in the absence of an application for the correction of that assessment and a petition, order and writ of certiorari directed thereto. (People ex rel. Goelet v. Miller, 104 N. Y. L. J. 1960.)
    
      William E. Shrewsbury and Robert S. Tyson for respondents.
   Per Curiam.

The issue in this certiorari proceeding, as tendered by the petition and return, the latter of which was verified on August 18, 1938, was passed upon by a referee. Paragraph “ third ” of the petition alleged: “That during the time provided by law, a deputy tax commissioner acting under the direction of said Board of Taxes and Assessments, duly assessed the above mentioned real estate of the petitioners for the purpose of taxation for the years 1938 and first half 1939 * * That allegation was admitted.

Upon the service of the return, the court obtained jurisdiction of the parties and subject-matter. Subsequently, on October 1, 1938, the Tax Commission, purporting to act under the authority of section J41-4.0 of the Administrative Code (L. 1937, ch. 929), opened supplemental books for the first half of 1939 and therein listed the relators’ property. No application, with respect to the supplemental assessment for the first half of 1939 was made by relators, except one for exemption from local taxation of alterations and improvements pursuant to section J41-2.0 of the Administrative Code. No motion has ever been made to amend the return so as to raise the question, which was first urged on the motion to confirm the referee’s report, that the. court had been deprived of jurisdiction to review the assessed valuation for the first half of 1939 by reason of the fact that relators had not made application for reduction of the supplemental assessment and had not obtained a writ of certiorari directed to it. The issue litigated before the referee was the value of relators’ property as of October 1, 1937, and there was considered both the original assessment for 1938 and the first half of 1939 and the supplemental assessment for the latter period. The theory and pleadings upon which the proceeding was tried, submitted and decided by the referee must be retained. (Racine v. Morris, 201 N. Y. 240, 243.)

The order should be affirmed, with costs.

Lehman,. Ch. J., Loughban, Finch, Bippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.  