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MATTER WESTERN PRINTING AND LITHOGRAPHING CO. v. EARL A. MCCANDLISH ET AL. (11/17/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 17, 1969

IN THE MATTER OF WESTERN PRINTING AND LITHOGRAPHING CO., RESPONDENT,
v.
EARL A. MCCANDLISH ET AL., CONSTITUTING THE GRIEVANCE BOARD OF THE TOWN OF POUGHKEEPSIE, APPELLANTS

In a proceeding pursuant to article 7 of the Real Property Tax Law to review assessments of two parcels of real property owned by petitioner, the appeal is from so much of an order of the Supreme Court, Dutchess County, dated June 14, 1968, as, in granting appellants' motion to dismiss the petition, gave petitioner leave to serve an amended petition.

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

Assuming that the petition failed to comply with section 706 of the Real Property Tax Law in that it did not allege separately the claimed overvaluation with respect to each of the two tax lots involved (People ex rel. City of New York v. Keeler, 237 N. Y. 332, 335), we are of the opinion that the defect constituted a mere procedural irregularity remediable by amendment, and not a jurisdictional defect (People ex rel. Hotel Astor v. Sexton, 159 Misc. 280, affd. 256 App. Div. 912, mot. for lv. to app. den. 280 N. Y. 853; cf. Hunt v. Hunt, 72 N. Y. 217, 229-230; Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166), and that petitioner was properly permitted to serve an amended petition (People ex rel. Tierney v. Wilkins, 261 App. Div. 728). In any event, the petition was not subject to dismissal since it pleaded inequality in addition to overvaluation; and the sufficiency of the allegations as to inequality are not challenged. Under such circumstances, the petition was sufficient to withstand a motion to dismiss (People ex rel. Dexter Sulphite Pulp & Paper Co. v. Hughes, 246 N. Y. 35).

Disposition

Order affirmed insofar as appealed from, with $30 costs and disbursements.

19691117

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