
    The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Appellant, v. Arthur Budlong and Others, as Assessors of the Town of Schuyler, Herkimer County, N. Y., Respondents.
    
      Certiorari to review an assessment — sufficiency of a petition stating that file relator's property was assessed at ninety-five per cent, and all other property at fifty per cent, of its value — remedy where the allegations of the petition and writ are indefinite.
    
    A petition, under article 11 of the Tax Law (Laws of 1896, chap. 908), for a writ of certiorari to review an alleged erroneous assessment, which states that the valuation placed hy the assessors upon the relator’s property is ninety-five per cent of its full value, and that the valuation placed upon all the other property in the town is only fifty per cent of its full value, should not he dismissed upon the ground that it fails to specify tlie instances in which the alleged inequality exists and the extent thereof; as the facts stated, if true, entitle the relator to relief.
    Where the allegations of the petition and writ are indefinite, the remedy of the defendants is to move, before filing their return, to have them made more definite and certain.
    Appeal by the relator, The 27ew York Central and Hudson River Railroad Company,"from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the cleric of the county of Herkimer on the 16th day of October, 1897, superseding and quashing a writ of certiorari.
    
      Albert H. Harris, for the appellant.
    
      Smith & Thomas, for the respondents.
   Follett, J.:

The relator owns 105.48 acres of land in the town of Schuyler on which it has 25.840 miles of main track and about one-half mile of side track.

In 1897 the assessors of- the town or tax district assessed the relator’s aforesaid realty at $356,400. . On the third Tuesday of August,, 1897, the relator appeared before the assessors and complained that, its assessment was unequal and made at a higher proportionate-valuation than was placed on the other property assessed on the same-roll, and applied for a reduction of the assessed valuation, which was refused, and thereupon' the relator on the 3d of September,. 1897, verified a petition stating the foregoing facts, and also “ that, the full value of its property in said tax district did not exceed on-July 1st,'1897, $373,485,” the assessment being ninety-five per cent, of the value of its property. -

It is not asserted in the petition that the relator’s property was-assessed for more than its value, but it is asserted “ That its said assessment is unequal in that, while its property is assessed at the* amount above stated, that of other owners of property in said tax district assessed upon said roll does not exceed 50 per cent, of its. full value, on the average, said assessors haying assessed the property in said tax district (other than that of your petitioner) at that per- , centage of its full value, instead of at full value as the law requires,, and such' inequality exists not in specific instances, but generally through said tax district.” (

On this petition a writ of certiorari was granted September 6,. 1897, pursuant.to article 11 of the Tax Law (Chap. 90S, Laws of’ 1896) requiring the assessors to certify and return at a Special Term held September 25, 1897, a true copy of- their assessment roll and whether said assessment has been made at a higher proportionate-valuation than the other real or personal property, or either of them,, on the same roll; and that, you also then certify and return at what percentage of the full value thereof .you assessed on said roll the property in said town other than that of the petitioner, * “ and * * * serve a copy of your said return to this writ ” on the relator’s attorneys within tejí days after the service of" this writ..

The petition and writ were served September 9, 1897, but the-, defendants made no return thereto, and on the return day moved to-dismiss the writ on the ground that “it is not specified in the petition: ‘ the instances in which such inequality exists and the extent thereof,’ which motion was granted on the theory that the failure of the relator to specify the particular instances in which it was asserted that there were inequalities in the valuations and the extent thereof was fatal to the jurisdiction of the court. In this I think the court erred. In the petition and in the writ it is clearly and definitely, stated'that the valuation placed by the assessors upon the relator’s property for the purpose of taxation is ninety-five per cent of its-actual value, and that the valuation placed upon the other property in the town for the purpose of taxation is but fifty per cent of its: value. This is a clear and definite assertion of a fact, which, if true, entitled the relator to relief. The relator cannot be required to-specify either in the petition" or in the writ, particular instances in which it is asserted there are inequalities in valuation, unless relief is sought upon that ground. Usually relief is sought upon the-ground that the valuation placed upon the relator’s property is higher than that placed upon the property of various other persons- or corporations in the town, and when relief is sought on that ground the instances must be alleged. But in case it is alleged, as in the-case at bar, that the relator’s property is assessed at ninety-five percent of its value, and all other property at fifty per cent of its value,, it is quite sufficient to give the court jurisdiction to grant relief. The defendants had their choice to controvert the allegations in the-writ or to admit their truth, which, in effect, they did by moving to-dismiss the writ, and instead of the writ being dismissed, the relator’s-assessment, should have been reduced by forty-five per cent.

■ This writ is authorized by the 11th article of the Tax Law (Laws-of 1896, chap. 908), and it is not a discretionary one, but is the mode provided by statute for reviewing assessments alleged to be-erroneous, and the petition is in the nature of a complaint in an action (People ex rel. Commercial Mutual Ins. Co. v. Commis sioners, 144 N. Y. 483), and in case the allegations in the petition and writ are indefinite, the remedy of the defendants is to move, "before filing their return, to have the allegations made more definite and certain. (People ex rel. Brooklyn Elevated R. R. Co. v. Assessors 10 App. Div. 393 ; Code Civ. Proc. § 1997.) The case ■last cited was followed by this court in People ex rel. Wilbur v. McCombs (24 App. Div. 632) at the December, 1897, term, and an order amending the. writ was affirmed.

The order should be reversed and the motion to dismiss the writ denied, without costs, with leave to the defendants to file a return within twenty days.

All concurred.

Order reversed, without costs, and motion to dismiss the writ denied, without costs, with leave to defendants to file return within twenty days.  