
    The People ex rel. John Radeziwon, Relator, v. The City of Buffalo, Respondent.
    (Supreme Court, Erie Special Term,
    February, 1909.)
    Certiorari — How issued — Proceedings — Petition — Amendment.
    Where a proceeding lias been instituted under the provisions of section 101 of the charter of title city of Buffalo to review by certiorari an assessment roll for repaving one of the streets in said city, the court may, upon the authority of section 2133 of the Code of Civil Procedure, allow the petitioners to amend their petition:
    1st: By alleging that the board of assessors counted only one resident owner of lands on the street in question, in all eases where said land was owned by and assessed to two or more resident- owners, and that by reason of such error they falsely reported that a majority of the owners had signed the petition for repaving when such was not the fact; and,
    2d: By alleging that, in violation of the provisions of the city charter, the common council ordered the street to be repaved with “ German rock asphalt and cement company’s standard asphalt Spec. ‘ B ’ on concrete base ” although no bid was reported to the common council for any such pavement.
    Pboceeding to review by certiorari an assessment-roll.
    Frank' F. Williams, for relator.
    Samuel F. Moran, for city of Buffalo.
   Wheeler, J.

This proceeding was instituted under the provisions of section 101 of the charter of the city of Buffalo, to review by certiorari an assessment-roll for repaving Broadway in said city.

Á petition was presented and a writ issued. The city then moved to quash the writ upon the alleged ground of the insufficiency of the petition upon which the writ was allowed, it being contended on behalf of the city that all the questions presented in the petition in this proceeding had been finally passed upon adversely to the relator in another proceeding to review the same assessment, entitled The People, on the relation of William 0. Brownell, against the Board of Assessors of the City of Buffalo.”

While the motion to quash the writ was pending, undetermined, and awaiting the result of a motion for a reargument of the Brownell case, the relator obtained orders to show cause why permission should not be granted to amend his petition by the insertion of certain other allegations and grounds of alleged irregularity in the proceedings leading up to the making of the assessment in question, which it is claimed on the part of the relator renders the assessment invalid.

The first amendment sought is one by which the relator seeks to allege that the board of assessors counted only one resident owner of lands on Broadway in all cases where such land was owned by and assessed to two or more resident owners and that, by reason of such error, they falsely reported that a majority of the owners had signed the petition for repaving, when such was not the fact. This amendment is sought to be made in order to make the petition in this case meet certain .suggestions contained in the opinion of Judge Haight of the Court of Appeals in the Brownell case.

The second amendment asked is an allegation in effect that, in violation of the provisions of the charter of the city of Buffalo, the common council has ordered that Broadway be repaved with German Hock Asphalt and Cement Company’s Standard Asphalt, Spec B ” on concrete base, although no bid was reported to the common council for any such pavement, as required by section 397 of the charter.

The corporation counsel opposes the allowance of the proposed amendments, and contends that the court has no power to allow the amendments asked, and argues that the original petition failed to state facts sufficient to warrant the issuing of the writ and, therefore, it is too late, by amendment, to state other facts which might or would support the writ. By section 101 of the city charter, the time within which certiorari proceedings can be instituted is limited to two weeks, and that time has long since expired; and it would be impossible for the relator to institute new proceedings.

We are of the opinion, however, that this court has ample power and authority to allow the amendments. Section 2133 of the Code of Civil Procedure provides that, after a writ has been issued, “Any order may be made, or any proceeding taken, in the cause, in relation to any matter not provided for in this article, as a similar proceeding may be taken in an action, brought in the same court.”

Section 1997 provides that “ The provisions of this act, relating to amendments, motions, and intermediate orders, in an action, are applicable to similar acts in such special proceedings, except where special provision is otherwise made thei*ein, or where the proceeding is repugnant to the object of the State writ, or the mode of procedure thereunder.”

The power to amend the petition has been repeatedly exercised by the courts. People ex rel. N. Y. C. & H. R R. R. Co. v. Feitner, 58 App. Div. 343; People v. Webster, 49 id. 565; People v. Marsh, 21 id. 88; People v. Assessors, 10 id. 110; People v. Roe, 25 id. 107.

The cases cited by the counsel for the city (viz.: People ex rel. Lehigh Valley R. Co. v. City of Buffalo, 57 Misc. Rep. 10; People v. Scannell, 56 App. Div. 51; Matter of Roberts, 81 N. Y. 62-69; Matter of Eager, 46 id. 100-109; People v. Harkness, 84 Hun, 447; People v. Coleman, 61 N. Y. St. Repr. 79) simply hold that, without proper allegations in the petition, proof cannot be received of facts unalleged showing the invalidity of the assessment or px’oceeding sought to be reviewed. These cases do not go to the extent of holding an allowance of an amendment, so as to permit proof, improper.

We see no reason why such amendment should not be allowed, if the proceeding has been originally instituted in time, even though the amendments be allowed after the time to institute another proceeding has lapsed. There seems to be no more reason for refusing such amendments than there would be in refusing to allow an amendment to a complaint in an action under like circumstances, which the courts not infrequently permit, even where a new suit would be barred by the Statute of Limitations. Elting v. Dayton, 67 Hun, 425; Rowell v. Moeller, 91 id. 424; Eighme v. Taylor, 39 id. 366.

Indeed, the inability to commence a new proceeding is a potent reason for allowing, rather than denying, permission to amend.

For these reasons, we think the amendments in this case should be allowed.

In allowing amendments, it is the practice of the courts to permit amendments to be made without inquiring too critically into the merits or sufficiency of the questions sought to be raised, leaving the question as to the sufficiency in law of the allegations set forth to be litigated in the action or proceeding itself. Mitchell v. Allen, 25 Hun, 543; Gas Works v. Standard Gaslight Co., 47 id. 255; City of New York v. East Bay L. & I. Co., 41 App. Div. 567; Purdy v. Manhattan R. Co., 11 Misc. Rep. 395; Reynolds v. Ætna Life Ins. Co., 16 App. Div. 74.

Otherwise, the party to the proceedings would be in no condition to present or litigate the questions raised.

Some of the questions raised are serious and involve the validity of a large assessment, which not only concerns the relator, but may concern the taxpayers of the city at large. We think it would be an abuse of discretion to refuse to allow the amendments.

The city may then move to quash the writ in the form presented by the amended petition, if it should deem that course advisable.

The granting of these amendments, however, makes it inadvisable for the court to grant the pending motion to quash the writ. That motion, however, should now be denied, without costs, but without prejudice to the right to renew the motion to quash the writ upon the amended petition.

We are also of the opinion that the right to amend should be upon terms, to-wit, upon the payment of twenty dollars costs of the motion for such privilege.

Ordered accordingly.  