In the Matter of the Assessment of the Cost and Expense of the Pavement between the Rails of Both Street Car Tracks in Genesee Street, from Emerson Avenue to the Southerly City Line, Authorized and Directed by an Ordinance of the Common Council of the City of Utica, N. Y., Adopted on the 19th Day of October, 1932. City of Utica, Appellant; Benjamin E. Tilton, Trustee of the New York State Railways, Debtor, Respondent

In the Matter of the Assessment of the Cost and Expense of the Pavement between the Rails of Both Street Car Tracks in Genesee Street, from Emerson Avenue to the Southerly City Line, Authorized and Directed by an Ordinance of the Common Council of the City of Utica, N. Y., Adopted on the 19th Day of October, 1932. City of Utica, Appellant; Benjamin E. Tilton, Trustee of the New York State Railways, Debtor, Respondent. [MAJORITY] Order modified in accordance with the memorandum, and, as modified, affirmed, without costs of this appeal to any party. Memorandum: The record is faulty in that it does not show the facts on which the motion for correction of the assessment was made. It shows the “ objections ” and the “ protest ” that were made as a basis for the motion, but does not show the ordinance that was passed creating the assessment, and, therefore, does not show that any assessment was actually made The record is also faulty in that the motion to dismiss the proceeding, which was made by the appellant, was not supported by any proof that the application to the court to review the assessment was not made in due time. Neither motion was supported by any affidavits. The order appealed from does not show what papers, ordinances or proofs were considered or before the court on the motion. The statement, made in the taxpayers’ brief, that the city of Utica waived the objection that the proceeding was not timely commenced, is not supported by anything in the record. The order, appealed from, denying the motion to dismiss the proceeding, should be modified by denying the motion with leave to move over on proper papers. All concur. (The order denies a motion to dismiss a tax assessment review.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.