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Siemer v. Village Bd. of Village of Orchard Park

Supreme Court of New York, Appellate Division

June 9, 1955

Village Bd. of Village of Orchard Park

Argued May 10, 1955.

[142 N.Y.S.2d 696] Before McCURN, P. J., and VAUGHAN, PIPER, WHEELER, and VAN DUSER, JJ.

Falk, Twelvetrees, Johnston &

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Siemer, Buffalo (Edward D. Siemer, Buffalo, of counsel), for petitioner-appellant-respondent.

Moot, Sprague, Marcy & Gulick, Buffalo (W. G. Conable, and Albert K. Hill, Buffalo, of counsel), for respondents-appellants.

PIPER, Justice.

This is a special proceeding pursuant to article 13 of the Tax Law to review an assessment of petitioner's residential property located in the village of Orchard Park, New York. The petition sets forth the three grounds of illegality, overvaluation, and inequality. Respondents, constituting the village board, moved under Rule 106 of the Rules of Civil Practice and Civil Practice Act, § 1293 for judgment dismissing the petition for failure to state facts which if true would warrant a change in the assessment. The learned Special Term granted an order striking paragraph 7 of the petition, which alleges various grounds of illegality, and otherwise denying the motion. Both sides appeal.

In a proceeding to review an assessment, this Court stated: 'On subjects upon which the Tax Law is silent, the pertinent provisions of the Civil Practice Act are applicable.' People ex rel. New York Central R. Co. v. Gilson, 239 A.D. 108, 266 N.Y.S. 760, 761, affirmed 265 N.Y. 457, 193 N.E. 269. 'The petition [in a tax certiorari] is the complaint, and the return is the answer, and the general rules of pleading are applicable to such a case.' People ex rel. Buffalo Burial Park Ass'n v. Stillwell, 190 N.Y. 284, 290, 83 N.E. 56, 58. A motion directed generally against a complaint must be denied if any count is good. Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401, 403. The motion in this case was to dismiss the entire petition. No motion was made to dismiss any separate paragraph either as sham or for legal insufficiency. It would seem, therefore, that the Special Term erred in striking paragraph 7 and letting the balance of the petition stand. On the motion which was made, the petition would have to stand or fall as a whole.

After describing petitioner's premises, the petition alleges that the village board, acting as the board of assessors, prepared the assessment rolls. The rolls correctly list petitioner's name as owner, the character of the property as residential, and the amount of land in acres. Under the words 'Mailing Address' appears the figure 218. Whether that refers to a street number

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or a post office box does not appear. The assessment form also contains a column in which the name of each abutting property owner is to be inserted. That is not filled out, except that an 'X' appears under the word 'South.' The property is bounded on the south by a street. There is no further description. The petition further [142 N.Y.S.2d 697] alleges that petitioner appeared before the assesors on grievance day and made an unavailing protest that the assessment was illegal, erroneous and unequal.

Paragraph 7 specifies the grounds of illegality. It is necessary to discuss only one, viz., that the description contained in the assessment roll is insufficient to identify the property assessed, and that no village tax map has been prepared. Paragraph 8, which the Special Term did not strike out, alleges an overvaluation of $1,600, the assessment being $10,100 and the true value being $8,500 or less. Paragraph 9, which the court below also regarded as legally sufficient, alleges inequality 'in that said assessment has been made at a higher proportionate rate of full value than the assessment generally of the other property upon the same roll by the same officers and reference is hereby made to each and every assessment thereon, except that hereby complained of, as instances of inequality * * * the said assessment is at a rate of 40%, or more, of full value, whereas assessments generally of other properties are at a rate of 30%, or less, of full value.'

The required contents of a petition in a proceeding to review an assessment are stated in Tax Law, § 290-c: 'The application for relief shall be founded upon a petition duly verified setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or if erroneous by reason of overvaluation, stating the extent of such overvaluation, or if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. Such petition must show that application has been made in due time to the proper officers to correct such assessment.'

Tax Law, ยง 21, subd. 1, prescribes the form of the assessment roll and requires that it contain 'such entries and descriptions as shall be sufficient to identify each separately assessed parcel or portion of real estate with the approximate quantity of the square feet, square rods or acres contained in such parcel or portion ...

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