People ex rel. New York Central & Hudsonn River Railroad v. State Board of Tax Commissioners

124 N.Y.S. 276

• Court: New York Supreme Court
• Decided: July 19, 1910
• Status: Published

Opinion

LEBCEUF, J.

This application is made to remove nine actions co review the special franchise assessments of the relator on Park avenue, in the city of New York, made by the State Board of Tax Commissioners for the years 1900 to 1908, inclusive. ■ All of these actions have .been tried before and finally submitted to Hon. James G. Graham, of New York City, as referee, to hear and report to the court his opinion therein. The testimony has all been taken, and the parties are awaiting the findings of the referee. With the application made in these nine cases, a similar application is made to change the place of trial in a similar action, brought to review the special franchise assessment for the year 1909 upon the same property. This action has not been tried nor referred.

It is substantially claimed by the counsel for the State Board that, because the Attorney General makes the application under section 293 of the consolidated tax law (Consol. Laws, c. 60), as amended by Laws 1909, c. 330, no cause need be shown. The language of the section is :

“On motion of either party the court may direct the place of trial changed to the county in which the special franchise under review is situated.”

Had the legislative intent been as claimed by the Attorney General, no discretion would have been left to the court, and no such language would have been used. It is apparent that some special reason must be shown the co.urt why such an application should be granted.

It is then claimed that cause exists, because the Attorney General will not object to the moving of “all these proceedings on for trial at one time, thus giving the justice who will hear the same, the full benefit that the referee would have in considering the voluminous testimony of early cases.” It is evidently the intention to move the ten cases, including that of 1909, at one time. It is claimed that there is no Special Term sitting in Albany county at which the cases can be tried during the summer, and that under special rule II, applying to New York county, the cases can all be disposed of at one time. Special rule II provides that:

“Motions to confirm a referee’s report, and for final judgment in any action or proceeding in which an issue of fact has been tried by a jury or by a referee, where application to the court for final judgment or final order is necessary, * * * may be noticed for, and made at, Part 1 of the Special Term for the hearing of litigated motions upon any day of the July, August and September terms when Part 3 of the Special Term is not in session. The justice assigned to Part 1 of the Special Term, if he does not deem it important that such application should be heard during the time when Part 3 is not in session, may adjourn the same to the next term of Special Term, Part 3.”

Special Term, Part 3, at which such applications are usually heard, is not in session, and will not be in session until October. Special Term, Part 1, is the crowded term at which litigated motions are heard in New York county during the summer time. It is not an extraordinary term for the actual trial of special franchise tax cases, nor is it the term at which the assessment of 1909 could or would be tried. If the referee files his report in all .of the cases submitted to him, as is reasonably probable, those cases then might be heard at the Special Term, Part 1, unless the court refuses to entertain them because of the press of business, and adjourns them over to Special Term, Part 3, in October. The trial of the 1909 assessment would not take place before the same justice who might pass in Special Term, Part 1, upon the nine other cases.

There is no reason, so far as the convenience of witnesses is concerned, in these cases, for the change of the place of trial. A reason of that character does exist in the case of the 1909 assessment, because that case has not yet been tried or submitted-. Two Special Terms are to be held in the city of Albany during July and August, and three Special Terms during September, at which the matters desired to be heard in these cases might be heard before the October Term. It might, indeed, be possible to argue an appeal from final orders granted during the summer at Albany at the term of the Appellate Division to be held on the second Tuesday of September.

No sufficient cause for the change of place of trial of the nine cases having been shown, the application is denied, but without costs.