Order affirmed, with costs, upon the ground that the matters set up by way of defense are not such as can be litigated in a tax certiorari proceeding. We pass upon no other question.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and FOSTER. Judge FROESSEL dissents and votes to modify the order in the following memorandum.
FROESSEL, J. (dissenting).
I would agree for affirmance except with respect to the fourth affirmative defense. While ordinarily the only question in a tax certiorari proceeding is whether the tax assessment is valid ( People ex rel. Ambroad Equities v. Miller, 289 N.Y. 339, 342; People ex rel. Bingham Operating Corp. v. Eyrich, 265 App. Div. 562), the right to exemption here is expressly based on a contract between respondents and the Village of Margaretville (Real Property Tax Law, § 406, subd. 3), which contract appellants claim was duly rescinded by the village. Surely we may not permit the City of New York to rely on a contract and deny respondents the right to establish it was rescinded by reason of fraud in its inception. Accordingly I would modify the order appealed from by holding that the fourth affirmative defense is sufficient in law; and except as so modified I would affirm.
Order affirmed, etc.