The People of the State of New York ex rel. Buffalo Railway Company, Appellant, v. George E. Priest and Others, The State Board of Tax Commissioners, Respondents; City of Buffalo and the Board of Assessors of the City of Buffalo, Respondents

The People of the State of New York ex rel. Buffalo Railway Company, Appellant, v. George E. Priest and Others, The State Board of Tax Commissioners, Respondents. City of Buffalo and the Board of Assessors of the City of Buffalo, Respondents. Special franchise tax — a final order, by which an assessment is reduced, should not be vacated and the local assessors be made pa/riles — certainly not on the motion of the city in which the assessed property is located. A certiorari proceeding, instituted against the State Board of- Tax Commissioners to review an assessment made by it upon the special franchise of a railway in the city of Buffalo, resulted in a final order reducing the amount of the assessment. After the assessment had been corrected pursuant to the final order, the Special Term, upon the motion of the city of Buffalo, made an order vacating the final order and directing that .the writ of certiorari be amended so as to run to the city of Buffalo and to the local board of assessors of that city, and that each of them make a return thereto. '■Held, that it was improper for the court to direct the writ to run to the city of Buffalo, as the city of Buffalo had no standing in the proceeding; That the order was also erroneous in so far as it directed the writ to run to the local board of assessors, for the reasons, first, that it was made on the motion of the city of Buffalo, which had no right to make any motion whatever in the proceeding, and, second, because the motion was made too late. Appeal by the relator, the Buffalo Railway Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 15th day of Rovember, 1901, vacating and setting aside an order theretofore entered herein reducing an assessment of the special franchise of the relator. The relator procured a writ of certiorari to review the assessment of its special franchise in the city of Buffalo by the State Board of Tax Commissioners for the year 1901. One of the grounds upon which the certiorari was asked for and granted was that such franchise had been assessed at its full value, while the real estate upon the city roll had been assessed by the local assessors at not more than sixty-eight per cent of its actual value. The writ was issued to .the State Board alone; the return was made thereto, a hearing was had and final order in such proceeding was entered on the 29th day of June, 1901, reducing the assessment of such franchise from $3,378,290 to $2,364,803, and it was so corrected and entered upon the local roll. Subsequently, and on the 21st day of September, 1901,' an order was granted at Special Term vacating such ordér and directing that the writ be amended so that it run to the city of Buffalo and to the local board of assessors of such city, and that each of them make a return thereto. From such order the relator takes this appeal. Porter Norton, for the appellant. John, Cunneen, Attorney-General, for the respondents Priest and others: Charles L. Feldman and Percy S. lansdowne, for the respondents the City of Buffalo and Board of Assessors, of the City of Buffalo. [MAJORITY — Parker, P. J.:] Parker, P. J.: We have already settled in this court- that the. city of Buffalo has • no interest in the controversy which was being litigated in this proceeding (People ex rel. Rochester Tel. Co. v. Priest, 95 App. Div, 44), and we reversed an order that under ■ similar circumstances brought in the city of Rochester as á party defendant to such an inquiry.. Clearly, within the reasoning of that cáse, it was error to ' direct the writ to run to the city of Buffalo in this case; but the question remains, should the order be sustained so. far as-;it refers to the local board of assessors of the city of Buffalo ? We are of the opinion that it should not, The motion is made by the city of' Buffalo, and it asks that it alone be brought in to defend against the relator’s claim. As we have seen, the city has. no standing whatever in court to defend this proceeding. It had no right to make any (motion whatever therein, and it was, therefore, error to entertain it. Moreover,, such motion was delayed until the question, which the local board of assessors are now required to raise and have examined, had been litigated and final judgment had been rendered thereon, and the corrected assessment had been reported to the local assessors and changed upon their rolls. So far as this record discloses,' the local- board of assessors itself -has never made any application to- be brought in, although some of its members were sworn upon the hearing had before the judgment was rendered. And the notice of motion made by the city did not ask to bring them in. Under these conditions we are of the opinion that whatever may be the right of the local assessors to be brought in as a party to such an inquiry while it is pending, on their Own motion, the order from which the appeal was taken was erroneous and should be reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements,, and motion' denied, with ten dollars costs.