People ex rel. Empire Mortgage Co. v. Cantor

Page, J.:

The evidence was that the true value of several of the lots was less than that stated in the petition of the relator, and the corporation counsel contends that the court is concluded by the valuation stated in the petition and cannot grant the relator the relief that the evidence would justify.

The Tax Law (§§ 290-296, as amd. by Laws of 1916, chap. 323; since amd. by Laws of 1920, chaps. 643, 649), together with section 906 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1911, chap. 455), provides for the review of assessments by certiorari, and establishes certain rules of procedure therein. In so far as the procedure is established therein, the provisions are exclusive, and the Code provisions do not apply. But where the statute is silent, the provisions of the Code of Civil Procedure (§ 2120 et seq.) are effective. (People ex rel. N. Y. C. R. R. Co. v. Block, 178 App. Div. 251, 252.) The questions involved are not determined on the return, as in ordinary certiorari proceedings, but it is provided that evidence may be taken by the court or a referee, which, with the findings thereon, constitutes a part of the proceedings on which the determination of the court is to be made.' (Tax Law, § 293, as amd. by Laws of 1916, chap. 323. Since amd. by Laws of 1920, chap. 643.) The purpose of the petition is to set in motion the statutory proceeding, and it has no probative force. The petition partakes of the nature of a pleading in an ordinary action. (Matter of Corwin, 135 N. Y. 245, 252; People ex rel. Commercial Mutual Ins. Co. v. Commissioners, 144 id. 483, 485.) The allegations of value in the petition have the force of admissions against the petitioner, but are not conclusive. If the evidence establishes a lower value, the court would have power to amend the petition to conform to the proof, and upon appeal this court can disregard the discrepancy and make such order as the facts justify. (People ex rel. Congress Hall v. Ouderkirk, 120 App. Div. 650, 653; Tax Law, § 295; Code Civ. Proc. § 1317.) We have, therefore, made the order in conformity with the opinion heretofore delivered.

Clarke, P. J., Laughlin, Smith and Merrell, JJ., concur.

Order settled and filed.