
    The People ex rel. Woodbury G. Langdon, Relator, v. Thomas L. Feitner et al., Tax Commissioners, Respondents.
    (Supreme Court, New York Special Term,
    March, 1909.)
    1. New York city — Beview o£ assessment by certiorari — Time of application for writ.
    The charter of the city of New York (Laws of 1897, chap. 378, | 886) does not require its commissioners of taxes to publish notice of the completion and filing of the tax-rolls, and, therefore, where a writ of certiorari to review an assessment in said city has been granted and served within four calendar months after, the, determination to be reviewed has become final and binding upon the relator. (Code Civ. Pro., % 2125), and the petition therefor is sufficient within the provisions of the said charter, the writ cannot be quashed on the ground that the petition was not presented to the court, as required by the Tax Law (Laws of 1896, chap. 908, § 251), “within fifteen days after the completion and filing of the assessment-roll and the first posting or publication of the notice thereof ”.
    The fact, that such a notice was posted or published without authority, cannot limit the relator’s time to apply for a writ.
    2. Same — Beview not governed by Tax Law of 1896.
    The review of an assessment in the city of New York is not governed by the Tax Law.
    3. Same — Beference to determine issue of fact.
    Where an issue of fact is raised by the return to the writ, there must be a trial of the issue, which, in a proper case, may be had before a referee (Laws of 1896, chap. 908, § 253).
    
      Motion for a reference, under the Tax Law, to try issues of fact raised by the return, of the tax commissioners of the city of Hew York, to a writ of certiorari granted to review an assessment made by them.
    J. W. Greene, for relator.
    John Whalen, Corporation Counsel, for respondents.
   Freedman, J.

The decision of Mr. Justice Leventritt, made upon the motion heard before him to quash the writ of certiorari in this proceeding, practically decides the question as to the sufficiency -of the allegations of the petition under section 906 of the charter -of Greater Hew York. The only remaining question to be determined is the one raised by the corporation counsel that the writ, not having been applied for within, the fifteen days provided for by section 251 of chapter 908 of the Laws of 1896, known as the General Tax Law, cannot be sustained, although it was obtained within the four months provided for in section 2125 of the Code -of Civil Procedure. It was held in People ex rel. Bronx Gas Co. v. Barker, 22 App. Div. 161, that the provisions of the Tax Law of 1896 (supra) did not apply to the city of Hew York, and that the right to a writ of this nature must be governed by the general rule respecting applications of this character, that is to say, that the application for a writ of certiorari to review the determination of the tax commissioners could be made, and the same granted, -within the time prescribed by section 2125 of the Code. It is true "that that decision was made prior to the adoption of the charter of Greater New York, and although changes in the provisions of the •Consolidation Act, under which act the decision was given, have been made in some respects, still, a comparison of the provisions of that act with those of the charter shows that sections 817-820 and 831 of the Consolidation Act are substantially retained by sections '892-895, 907 and 909 and made a part of the charter, and those provisions were referred to and relied upon in the Bronx case (supra) as showing, that the provisions of law relating to the -powers of the commissioners of taxes in the city of New York with respect to the review or correction of assessments are not affected by the Tax Law.” The corporation counsel attempts to avoid the effect of the decision in the Bronx case (supra) and to make the provisions of the Tax Law relative to the fifteen days’ limitation -apply to all writs of certiorari to review tax assessments in the city of New York, and in support of his position invokes the aid of section 886 of the charter,, which contains the following provision: “All the rights, powers and duties heretofore devolved by law upon the board of taxes and assessments in the city of New York, upon the department of assessment of the city of Brooklyn, and upon like departments, boards or officers of taxes and assessments other than for street improvements in the other municipal and public corporations or parts of municipal and public corporations consolidated by this act with the municipal corporation known as the mayor, aldermen and commonalty of the city of New York are hereby devolved, unless otherwise herein expressly provided, upon and vested in the board of taxes and assessments in The City of New York.” And heclaimsthat, inasmuch as under the Tax Law the assessors of all the other municipal corporations consolidated with the city of New York were, before consolidation, required to publish notice of the completion and filing of the tax-rolls, such duty has devolved upon the present board of taxes and assessments in-the city of New York. Such a construction of section 886 of the charter cannot be entertained. The evident intent of that section was to provide that the city of Brooklyn and the other municipalities or parts thereof that formerly "were without, but by the charter are now made a part of Greater New York, were to come within the provisions of the law governing the department of taxes and assessments in the city of New York, and that all the rights, powers and duties heretofore devolving upon that department should apply to the annexed portions, and not that the city of New York should be required to comply with the law theretofore in force in the annexed districts. That this is the true construction to be pláced upon that section is further evidenced by the fact that, while the charter makes provision that certain notices shall be given by the board of taxes and assessments, that the books are open for inspection (§ 892), and that the receiver of taxes shall give public notice that the assessment-rolls have been given to him, etc., it is silent as'to the duty of the board to advertise that the assessment-rolls have been completed, or that they have been delivered to the municipal assembly. If, therefore, no provision is made in the charter for the giving of .the fifteen days’ notice as required by the Tax Law (§ 38), how can it be claimed that a writ of certiorari must be obtained under section 251 of the Tax Law, which provides that the petition for such writ shall be presented “ within fifteen days after the completion and filing of the assessment-roll and- the first- posting or publication of the notice thereof.” The fact that such "notice was posted or published, there being no authority for such publication, cannot operate to limit the time in which the relator has in which to make his application for the writ. The draft committee of the Greater Hew York commission in their report to the commission transmitting the draft of the charter say: “ For the same reason the department of taxes and assessments has been retained upon the lines of the same department of the present city of Hew York, with no other changes than appeared to be necessary to enable the department to cope efficiently with the increased magnitude of the problems with which they have to deal * * * careful provision is also made to secure equality of assessments and taxation in all parts of the new city.” From the foregoing it will be seen that the same reasons given in the Bronx case (supra) to show that the application for a writ of certiorari to review the proceedings of the board of taxes and assessments in the city of Hew York did not come within the provisions of the Tax Law when the Consolidation Act was in force, are applicable with equal validity to proceedings taken for such review by writs of that character when applied for under the provisions of the charter, and, therefore, in the case at bar, the writ having been applied for and obtained within the time specified in section 2125 of the Code of Civil Procedure, and the petition upon which the same was granted containing averments sufficient to bring it within the provisions of the charter, the writ cannot be quashed. An issue of fact having been raised by the return of the commissioners thereto, there must be a trial of the issues, and upon all the facts disclosed the case is one in which the reference provided for by section 253 of chapter 908 of the Laws of 1896 may be ordered. The motion of the relator for a reference should be granted.

Motion granted.'  