People ex rel. Central Hudson Gas & Electric Co. v. Woodbury

171 A.D. 300, 157 N.Y.S. 29, 1916 N.Y. App. Div. LEXIS 10334

Opinion

Kellogg, P. J.:

The writ of certiorari was issued March 27, 1915, to review a special franchise assessment where the roll was completed and filed and notice thereof given September 15, 1911. The statute in force at the time (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 46)

* required that the petition for a writ of certiorari to review this assessment must be presented within fifteen days after. September 15, 1911. The petition was presented several years too late. No officer of the State can ■ waive this jurisdictional question, and the court has no power to review the assessment unless the statutory proceeding is observed.

The motion of the Attorney-General to dismiss the writ has been denied, apparently for the reason that in some way the Attorney-General’s office had waived the statutory provision or was estopped from relying upon it. The Contention of the respondent that by practice with the Attorney-General’s office in former years the attorney had been led to believe that a certiorari to' review an assessment might be brought at substantially any time, , although the statutory period had expired, is not relevant. It is conceded that no such understanding was had with reference to the assessment in question. The fact, if it is a fact, that some Attorneys-General at some former time may have adopted a loose practice with the attorney in some particular case and may have permitted a review of an assessment where the writ was allowed after the statutory time does not establish a rule which is binding upon the office or which the attorney has the right to rely upon in future cases. The affidavits indicate that the relator’s counsel made timely petition for the writ to review the assessment of 1910 and that he directed his assistant to institute timely proceedings for a review of the assessment of 1911. The fact that proceedings were not begun in time resulted, therefore, from a neglect in the attorney’s office and not on account of any supposed understanding or previous practice with the Attorney-General’s office. The city of Poughkeepsie was principally interested in sustaining the assessment, and the Attorney-General’s office left the details of the proposed adjustment principally with the city and naturally assumed that the assessment for the year 1911, as well as for the years 1910 and 1913, was under review by certiorari proceedings properly instituted and that the settlement covered the assessments for the three years, the assessment for the year 1912 having been adjusted by a judgment which in a way formed the basis for the settlement for the other years. In fact no proceeding to review the assessment for 191.1 was pending, and the liability of the respondent had been conclusively fixed and its counsel knew that fact before the settlement was made. He informed the special counsel for the city when the negotiations were entered upon for a settlement with it “that while no papers in the 1911 action had been prepared and no certiorari issued for that year, that he had an arrangement with the Attorney-General’s office by which the action was considered by them as having been started.” This statement was not accurate, although influenced perhaps by the fact that upon some occasion in former years an Attorney-General had permitted loose practice with him in some particular cases. The city, however, made the settlement relying upon that statement. When the' settlement and the papers for judgment were mailed to the Attorney-General he caused the judgments to be entered for the 1910 and 1913 but declined to enter judgment for the 1911 assessment upon the ground that no litigation was pending with reference thereto.

The relator contends that the entry of these judgments by the Attorney-General, after he knew that no proceeding was pending to review the 1911 assessment, estops him from making a motion to dismiss the writ and in some way permits a certiorari to issue. The contention is that by the settlement the respondent receives rio interest upon the excess of taxes it had paid for 1910 and 1913, and it was precluded from questioning the assessed valuation for those years, the settlement only providing a reduction of fifteen per cent to equalize the assessed value with the other assessed values in the city. The details of the assessment for the various years and the settlement agreement are not before us, and we cannot determine whether the respondent has been prejudiced by the entry of judgments. If the judgments were improperly entered the respondent’s remedy was to move to vacate them and to revive the litigations which had been settled by the agreement and not to seek a review of an assessment which the circumstances prevent the court from reviewing. The confusion arises from the respondent’s mistake. The respondent’s inaccurate statement as to the condition of the 1911 assessment misled the counsel for the city, and evidently the acts of the respondent and of the counsel for the city misled the Attorney-General. The respondent, by the settlement, was obtaining the reduction of an assessment which had already been conclusively fixed, and it has suffered no loss by the discovery of the fact that it is not in a position to obtain that benefit. If it has been aggrieved by the action of the Attorney-General in entering the judgment, its remedy is elsewhere. There is no authority at law for the issuing of a certiorari to review an assessment where the petition is presented several years after the assessment is made.

The order appealed from should, therefore, be reversed, with costs, and the order dismissing the writ of certiorari should be granted, with costs.

All concurred, except Lyon and Howard, JJ., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion to dismiss writ of certiorari granted, with ten dollars costs.

Since amd. by Laws of 1911, chap. 804. — [Rep.