practice in this state does not appear to differentiate the motion whether made before or after the return.

The terms "quash" and "supersede" in certiorari proceedings are very often used interchangeably, although there is a distinction. American & English Encyclopedia of Pr., page 234, defines the distinction between quashing and superseding the writ as follows: "The writ is quashed only after the return has been made, while it is superseded before the return; but the practice in this respect is somewhat loose. In Ferguson v. Jones, 12 Wend. 241, it was held, that when the prayer was that the writ to be quashed or 'for such other order as to the court may seem proper,' and the writ had not been returned, it was superseded. In Comstock v. Porter, 5 Wend. 98, there was a motion to quash and the writ was superseded. In Saratoga & Washington R. R. Co. v. McCoy, 5 How. Pr. 378 (1851), on a motion in a common law certiorari proceeding to quash or supersede the certiorari it was objected that the motion would not lie, because the certiorari had not been returned, although it was returnable, and the court held, citing Ferguson v. Jones, supra, "that the same purpose will be accomplished by a writ of supersedeas as by an order to quash."

In People ex rel. W. S. R. Co. v. Pitman, 9 St. Rep. 469 (1887), it was held, that while at common law the return to a writ of certiorari was conclusive as to the facts, such is not the case of a return under the statutory writ provided for by Chapter 269, Laws of 1880, which permitted a hearing and testimony to be taken when necessary; that it was not the practice to quash a writ of certiorari upon a hearing based upon the return, and that "upon such hearing, the court should make a final order in the proceedings, either nullifying, confirming or modifying the determination under review."

In People ex rel. Supervisors v. Hadley, 14 Hun, 183, the court held that a motion to supersede or quash a writ of certiorari is proper when it has issued after the lapse of too long a

period of time, or in behalf of one who has no interest in the relief sought, or irregularly, or without proper cause being shown therefor, or when, for any reason, it appears that the writ was improvidently issued.

Return to writ.-The officers making a return to such writ shall not be required to return the original assessment-roll or other original papers acted upon by them, but it shall be sufficient to return certified or sworn copies of such roll or papers, or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the value of the property assessed on the roll and the grounds for the valuation made by the assessing officers and the return must be verified. (Sec. 292, Tax Law, former sec. 252, Tax Law of 1896.)

Source: Contained in substance in sec. 3, chap. 269, L. 1880.

Sworn or certified copies of the assessment roll are sufficient on the return. In re Winegard v. Kromer et al., Assessors, 5 Misc. 54 (1893); aff'd 78 Hun, 58.

By whom made.-See cases under heading of "Parties Defendant," supra.

When and where return to be made.—Section 291 of the Tax Law requires a return to be made at a special term to be held not less than ten days from the time of its allowance, but it is not necessary that the writ should be served ten days before the return. People ex rel. U. & D. R. R. v. Smith, 24 Hun, 66 (1881). The provisions of section 2132 of the Code requiring a return to be made within twenty days after the service of the writ, do not apply to a writ obtained under the Tax Law, or under the Charter. Section 291 of the Tax Law regulates this procedure (formerly Chapter 269, Laws of 1880); and it also requires the return to be made at a Special Term of the Supreme Court of the Judicial District in which the assessment complained of was made. People ex rel. N. Y. Lake Erie & W. R. R. v. Low, 40 Hun, 176 (1886).

The writ should designate some particular special term at which the return should be made and a requirement that the return be made within twenty days after service at the office of the county clerk is irregular. A voluntary appearance by both parties at a subsequent special term and a stipulation for an order of reference will amount to a waiver of the defect. People ex rel. Paddock v. Lewis, 55 Hun, 521.

Statements and allegations in return.-The allegations contained in the return to a writ of certiorari must for the purpose of pleading in certiorari proceedings be taken as true; if they are untrue, relator's remedy is by an action for a false return. People ex rel. Rochester Lamp Co. v. Feitner, 65 App. Div. 224 (1901).

Facts which induced commissioners to determine a corporation's claim to a reduction under Section 820 of the Consolidation Act on capital stock and surplus need not be set forth in the return to a petition in certiorari proceedings, if found in the corporation's sworn report to commissioners. If the commissioners rely on facts not otherwise appearing in the proceedings, they must state them in their return; if not, it is legal error. People ex rel. Edison Gen. El. Co. v. Barker, 74 Hun, 418 (1893); aff'd 141 N. Y. 251.

The assessors should not be required to specify the statute. or law under which they proceed. People ex rel. Fitzgerald v. Feitner, 40 App. Div. 620 (1899).

A writ issued on the application of one assessed for real estate, who claims to be unequally assessed, may require a return as to assessments of both real and personal property. People ex rel. Ulster & Del. R. R. v. Smith, 24 Hun, 66 (1881). This practice does not apply in the city of New York under section 906, of the Charter.

A form of return used by the Board of Taxes and Assess

ments of the city of New York is shown in the forms used in local taxation at the end of the book.

Proceedings upon return.—If it shall appear upon the return to any such writ that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the petition, the court may order such assessment, if illegal, to be stricken from the roll, or if erroneous or unequal, it may order a re-assessment of the property of the petitioner, or the correction of his assessment upon the roll, in whole or in part, in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments of other property upon the same roll and secure equality of assessment. If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. Upon such hearing the parties to the proceeding may mutually agree upon the number of pieces of property to be valued and the number of witnesses to be sworn on the subject of the value of such properties. But in case the parties fail to so agree, then upon application of either party the court shall determine the number of witnesses to be sworn and the number of the pieces of property to be valued and shall limit the same to such number as the court shall deem reasonable. When the writ is obtained to review a special franchise assessment made pursuant to the provisions of section forty-six of this chapter, upon the filing of the return to the writ the court may take such evidence as it may deem necessary, or may appoint a referee to take evidence and to hear, try and determine all questions raised by the petition and the return thereto and to make his findings and determinations therein, or, on motion of either party, the court may direct the place of trial changed to the county in which the special franchise under review is situated, and on an order duly entered granting such motion, the place of trial shall be deemed changed to the county designated and the papers and proceedings shall be certified to that county in the manner now provided by law in the case of a change in the place of trial of an action and all subsequent proceedings shall be had in the county so designated, as if the special proceedings had been originally instituted in that county, and the court may, upon the application of the attorney-general, upon cause shown, vacate any reference heretofore made in any proceeding instituted to review a special franchise assessment, made pursuant to the provisions of section forty-six of this chapter. The governor may, upon the application of the attorney-general, upon cause

shown, appoint extraordinary terms of the Supreme Court to be held in any judicial district and designate a justice to preside thereat, to try such special franchise cases. Such extraordinary term shall have jurisdiction over all special franchise cases arising in any tax district within the judicial district for which the term is appointed, without regard to the county in which the term is being held, and either party to a proceeding to review a special franchise assessment may at any time bring the proceeding on for a hearing or trial before said extraordinary term by serving upon the other party sixteen days' notice thereof by mail or fourteen days' notice personally. A new assessment or correction of an assessment made by order of the court shall have the same force and effect as if it had been so made by the proper officers within the time prescribed by law for making such assessment. (Sec. 293, Tax Law, as amended by L. 1909, ch. 330, and L. 1911, ch. 302, former sec. 253, Tax Law of 1896.)

Source: L. 1880, ch. 269, sec. 4, 5. The provisions relating to special franchises were added by the amendment of 1909. The third and fourth paragraphs permitting the parties to limit the testimony on the hearing were added by the amendment of 1911.

The issue. Where the return shows there is nothing to contradict in the statement made by the corporation assessed, and that there appeared to be no other basis for the assessors' action, a mere denial that the assessment is illegal, erroneous or unequal is a conclusion of law and creates no triable issue. People ex rel. Bhumgara Co. v. Wells, 93 App. Div. 212 (1904). And, if in return to the certiorari, there is no dispute as to facts no reference will be ordered. People ex rel. Equitable Gas L. Co. v. Com'rs, 81 Hun, 22 (1894); reversed on other grounds, 144 N. Y. 94. It is the duty of the court to determine whether the tax commissioners applied a correct method of assessment, and, if they did not, to re-appraise and fix the amount subject to taxation. People ex rel. Man. Ry. Co. v. Barker, 48 App. Div. 252 (1900); reversed on other grounds, 165 N. Y. 305.

The common law writ and Code writs only brought up the record and proceedings. The writ under the Tax Law and its predecessor, the Law of 1880, permits a re-determination. The return is not conclusive but the facts may be inquired into de