Hersch v. Stroup
| Decision Date | 27 June 1963 |
| Citation | 241 N.Y.S.2d 218,19 A.D.2d 664 |
| Parties | Application of James HERSCH et al., appellants, v. William E. STROUP, Respondent. |
| Court | New York Supreme Court — Appellate Division |
LeRoy Stein, Elmira (Cain & McCabe, Elmira, Samuel J. Castellino, Elmira, of counsel), for appellants.
James C. Graner, Corp. Counsel, Elmira, for respondent.
Before BERGAN, P. J., and COON, GIBSON, REYNOLDS and TAYLOR, JJ.
Appeal from an order of the Supreme Court, Chemung County, denying appellants a reduction of a tax assessment for the year 1959 on certain real property owned by appellants in the City of Elmira.
The parties have stipulated that the 1958 assessment on the property was erroneous and should be reduced by a substantial amount and Special Term has so ordered. It is also stipulated, however, that appellants did not file a written protest as required by then § 27 of the Tax Law (now § 512 of the Real Property Tax Law) against the 1959 assessment or commence a proceeding in conformance with § 290-a of the Tax Law (now § 702 of the Real Property Tax Law) within the time prescribed therein. It is appellants' contention that their counsel was advised orally by the city assessor that it would not be necessary for appellants to commence proceedings with respect to the 1959 assessment since they would be a mere repetition of the 1958 proceedings already in progress and that any settlement rendered on the 1958 assessment would apply likewise to the 1959 assessment. The city's position is that while it does not deny the actions of the city assessor, it will not formally agree to waive the required formal protest and the initiation of proceedings and thus there can be no reduction for 1959. Special Term has refused to order any reduction for 1959 on the grounds that the city could not waive the procedural requirements which it found had not been complied with and that it was without jurisdiction in the matter. We concur in the result rendered by Special Term. Appellants to this date have never commenced a proceeding with respect to the 1959 assessment and, of course, the fact that proceedings were pending concerning the year 1958 would not grant Special Term jurisdiction to delve into other years. Without initiation of proceedings directed at reviewing the assessment for the year in dispute we do not find this issue properly before the court (cf. Matter of Deering Realty Corp. v. Podeyn, 18 A.D.2d 821, 236 N.Y.S.2d 869)....
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