People ex rel. Church of Assumption v. Dimond

Appellate Division of the Supreme Court of New York

People ex rel. Church of Assumption v. Dimond

122 A.D. 459, 106 N.Y.S. 832, 1907 N.Y. App. Div. LEXIS 2471

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

DecidedNovember 22, 1907

StatusPublished

This text of 122 A.D. 459 (People ex rel. Church of Assumption v. Dimond) 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

People ex rel. Church of Assumption v. Dimond, 122 A.D. 459, 106 N.Y.S. 832, 1907 N.Y. App. Div. LEXIS 2471 (N.Y. Ct. App. 1907).

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Opinion

Miller, J.:

This is an appeal from an ordér denying a motion to dismiss a writ of certiorari issued to review an assessment of the relator’s real, property made by the assessors of the village of Peekskill, The motion was made on the ground that the petition for the writ was not presented within fifteen days after the completion and .filing of the assessment roll and the posting and publication of notice thereof.

The decision of this case depends on the construction and application of section 251 of the Tax Law (Laws of 1896, chap. 908) and section 109 of the Village Law (Laws of 1897, chap. 414). There is no question that this ,is the statutory proceeding to review an [460]*460assessment authorized by the Tax Law; the writ is returnable to a Special Term of the Supreme Court. blor is there any question that said section 251 of the Tax Law requires the presentation of the petition within fifteen days after the completion and filing of the assessment roll and the posting and publication of notice thereof. But it is-contended that a village is not a tax district, that the general Tax Law has no application to a village, and that this proceeding is governed by the Village Law and by section 109 thereof, which section reads as follows : “ An- application for a writ of certiorari to review, the assessment-roll may be made within such fifteen days in- the manner provided by the Tax Law.” It is contended that the language quoted is permissive, and that the petition for the writ may be presented after the expiration of said fifteen days in case sufficient excuse be -shown. Said section 109 is permissive in that it permits said application to be made within said fifteen days, but it does not. permit one- to be made thereafter. But for the statute the petitioner would have no right to the remedy sought to be invoked. The statute permits the exercise of that right within fifteen days after the completion and filing of the assessment roll, and to be available the right must be exercised within that time.

* It is not necessary to consider whether the provisions of the general Tax Law relating to reviews of assessments by certiorari would otherwise be applicable, for said provisions are expressly made applicable by said section 109 of the Village Law. There can-be no doubt as to the meaning of said section; but if there otherwise were doubt on the subject, it,would be entirely removed by reading it in connection with the said section 251 of the general Tax- Law.

It- is urged that the assessment in question is void.. Even though that be so, whatever other remedies the relator may have, it cannot have a special statutory remedy without availing itself thereof within the period prescribed by the statute.

The order should be reversed and the motion granted.

Woodwabd, Jenks, Hookee and Bioh, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and .motion granted, with costs. ' .

See Village Law, § 108, 109:— [Rep.

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Miller, J.:

This is an appeal from an ordér denying a motion to dismiss a writ of certiorari issued to review an assessment of the relator’s real, property made by the assessors of the village of Peekskill, The motion was made on the ground that the petition for the writ was not presented within fifteen days after the completion and .filing of the assessment roll and the posting and publication of notice thereof.

The decision of this case depends on the construction and application of section 251 of the Tax Law (Laws of 1896, chap. 908) and section 109 of the Village Law (Laws of 1897, chap. 414). There is no question that this ,is the statutory proceeding to review an [460]*460assessment authorized by the Tax Law; the writ is returnable to a Special Term of the Supreme Court. blor is there any question that said section 251 of the Tax Law requires the presentation of the petition within fifteen days after the completion and filing of the assessment roll and the posting and publication of notice thereof. But it is-contended that a village is not a tax district, that the general Tax Law has no application to a village, and that this proceeding is governed by the Village Law and by section 109 thereof, which section reads as follows : “ An- application for a writ of certiorari to review, the assessment-roll may be made within such fifteen days in- the manner provided by the Tax Law.” It is contended that the language quoted is permissive, and that the petition for the writ may be presented after the expiration of said fifteen days in case sufficient excuse be -shown. Said section 109 is permissive in that it permits said application to be made within said fifteen days, but it does not. permit one- to be made thereafter. But for the statute the petitioner would have no right to the remedy sought to be invoked. The statute permits the exercise of that right within fifteen days after the completion and filing of the assessment roll, and to be available the right must be exercised within that time.

* It is not necessary to consider whether the provisions of the general Tax Law relating to reviews of assessments by certiorari would otherwise be applicable, for said provisions are expressly made applicable by said section 109 of the Village Law. There can-be no doubt as to the meaning of said section; but if there otherwise were doubt on the subject, it,would be entirely removed by reading it in connection with the said section 251 of the general Tax- Law.

It- is urged that the assessment in question is void.. Even though that be so, whatever other remedies the relator may have, it cannot have a special statutory remedy without availing itself thereof within the period prescribed by the statute.

The order should be reversed and the motion granted.

Woodwabd, Jenks, Hookee and Bioh, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and .motion granted, with costs. ' .

See Village Law, § 108, 109:— [Rep.

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Bluebook (online)

122 A.D. 459, 106 N.Y.S. 832, 1907 N.Y. App. Div. LEXIS 2471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-church-of-assumption-v-dimond-nyappdiv-1907.