American Linoleum Manufacturing Co. v. City of New York

New York Supreme Court

American Linoleum Manufacturing Co. v. City of New York

123 Misc. 375, 205 N.Y.S. 794, 1924 N.Y. Misc. LEXIS 1142

DecidedJune 24, 1924

StatusPublished

This text of 123 Misc. 375 (American Linoleum Manufacturing Co. v. City of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Linoleum Manufacturing Co. v. City of New York, 123 Misc. 375, 205 N.Y.S. 794, 1924 N.Y. Misc. LEXIS 1142 (N.Y. Super. Ct. 1924).

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Opinion

Mullan, J.

It seems quite plain to me that the action does not lie. The case of People ex rel. Wessell, Nickel & Gross v. Craig, 236 N. Y. 100, upon which plaintiff mainly relies, is not in point. There [376]*376the aggrieved taxpayer had placed itself within the remedial field of section 897, Greater New York charter. It followed the charter provision and obtained an order of the tax board for the reduction it sought, and the comptroller refused to effectuate the order. Here no attempt was made to invoke the power vested in the tax commissioners by section 897. The case of Ætna Ins. Co. v. Mayor, etc., 153 N. Y. 331, is not applicable, as there the assessment was wholly void and illegal. Where, as here, the claimed error consists of the inclusion of an item of personalty in an assessment of realty, the grievance is based upon overvaluation and not upon illegality. People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; affd., 222 N. Y. 657. Without expressing any opinion upon the competency of the testimony of the deputy tax commissioner, I deny the motion to strike it out, as it is immaterial if the view I take be correct, but it may be very material if it should be held by the appellate courts that such an action as this will lie. The compla’nt is dismissed.

Ordered accordingly.

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Mullan, J.

It seems quite plain to me that the action does not lie. The case of People ex rel. Wessell, Nickel & Gross v. Craig, 236 N. Y. 100, upon which plaintiff mainly relies, is not in point. There [376]*376the aggrieved taxpayer had placed itself within the remedial field of section 897, Greater New York charter. It followed the charter provision and obtained an order of the tax board for the reduction it sought, and the comptroller refused to effectuate the order. Here no attempt was made to invoke the power vested in the tax commissioners by section 897. The case of Ætna Ins. Co. v. Mayor, etc., 153 N. Y. 331, is not applicable, as there the assessment was wholly void and illegal. Where, as here, the claimed error consists of the inclusion of an item of personalty in an assessment of realty, the grievance is based upon overvaluation and not upon illegality. People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; affd., 222 N. Y. 657. Without expressing any opinion upon the competency of the testimony of the deputy tax commissioner, I deny the motion to strike it out, as it is immaterial if the view I take be correct, but it may be very material if it should be held by the appellate courts that such an action as this will lie. The compla’nt is dismissed.

Ordered accordingly.

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Bluebook (online)

123 Misc. 375, 205 N.Y.S. 794, 1924 N.Y. Misc. LEXIS 1142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-linoleum-manufacturing-co-v-city-of-new-york-nysupct-1924.

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