In re Nisbet

Appellate Division of the Supreme Court of New York

In re Nisbet

73 N.Y. St. Rep. 731

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 7, 1896

StatusPublished

This text of 73 N.Y. St. Rep. 731 (In re Nisbet) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Nisbet, 73 N.Y. St. Rep. 731 (N.Y. Ct. App. 1896).

Pincite

Opinion

BROWN, P. J.

The petitioners in this proceeding are tax> payers in the city of Yonkers, and seek a review by certiorari of the assessment upon their real property. The writ having been allowed, and the return thereto having been made, the proceedings were dismissed on the motion of the assessors, upon the ■ground that the petition was insufficient. We are of the opinion that this ruling cannot be sustained. The petition alleges that the; assessment complained of is erroneous by reason of overvaluation, or is unequal in that it had been made at a higher proportionate valuation than other real property on the same roll by the same assessors, and that the petitioners will be injured by such erroneous and unequal assessment. This allegation is in the language of the statute (Laws 1880, c. 269, § 1), and is sufficient to [732]*732confer jurisdiction upon the court to issue the writ. Rochester Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep. 872; In re Corwin, 135 N. Y. 245; 48 St. Rep. 238; People ex rel. Com. Mut. Ins. Co. v. Commissioners, 144 N. Y. 483; 64 St. Rep. 60. The rule applied in the cases cited is that the petition is in the nature of a pleading, and conclusions of fact only need be stated, and not the evidence necessary to support them.

. The only criticism made upon the petition is that it should have been alleged that the property was assessed at a higher proportionate rate than property in the city of Yonkers generally. To sustain this criticism we are referred to the case of People ex rel. Allen v. Badgley, 138 N. Y. 314; 51 St. Rep. 410, where that rule was applied by the court of appeals.- That case was, however, an appeal from an order which reduced an assessment, and what was said by ‘the court had reference to the testimony in the case, and not to the allegations of the petition. We think that it was sufficient, to confer jurisdiction upon the court, that the allegation of overvaluation and inequality of assessment was set forth in the petition in the language of the statute. This conclusion renders it unnecessary to consider the question as to the amendment of the petition.

The order dismissing the writ must be reversed, with $10 costs and disbursements,, and the order denying the motion to amend the petition must be affirmed, without costs.

All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BROWN, P. J.

The petitioners in this proceeding are tax> payers in the city of Yonkers, and seek a review by certiorari of the assessment upon their real property. The writ having been allowed, and the return thereto having been made, the proceedings were dismissed on the motion of the assessors, upon the ■ground that the petition was insufficient. We are of the opinion that this ruling cannot be sustained. The petition alleges that the; assessment complained of is erroneous by reason of overvaluation, or is unequal in that it had been made at a higher proportionate valuation than other real property on the same roll by the same assessors, and that the petitioners will be injured by such erroneous and unequal assessment. This allegation is in the language of the statute (Laws 1880, c. 269, § 1), and is sufficient to [732]*732confer jurisdiction upon the court to issue the writ. Rochester Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep. 872; In re Corwin, 135 N. Y. 245; 48 St. Rep. 238; People ex rel. Com. Mut. Ins. Co. v. Commissioners, 144 N. Y. 483; 64 St. Rep. 60. The rule applied in the cases cited is that the petition is in the nature of a pleading, and conclusions of fact only need be stated, and not the evidence necessary to support them.

. The only criticism made upon the petition is that it should have been alleged that the property was assessed at a higher proportionate rate than property in the city of Yonkers generally. To sustain this criticism we are referred to the case of People ex rel. Allen v. Badgley, 138 N. Y. 314; 51 St. Rep. 410, where that rule was applied by the court of appeals.- That case was, however, an appeal from an order which reduced an assessment, and what was said by ‘the court had reference to the testimony in the case, and not to the allegations of the petition. We think that it was sufficient, to confer jurisdiction upon the court, that the allegation of overvaluation and inequality of assessment was set forth in the petition in the language of the statute. This conclusion renders it unnecessary to consider the question as to the amendment of the petition.

The order dismissing the writ must be reversed, with $10 costs and disbursements,, and the order denying the motion to amend the petition must be affirmed, without costs.

All concur.

Cite This Page — Counsel Stack

Bluebook (online)

73 N.Y. St. Rep. 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nisbet-nyappdiv-1896.

Opinion

Related

Cite This Page — Counsel Stack