MATTER OF CITY OF NEW YORK v. SANFORD

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and the Village of Margaretville (Real Property Tax Law, § 406, subd. 3), which contract appellants claim was duly rescinded by the village. Surely we may not permit the City of New York to rely on a contract and deny respondents the right to establish it was rescinded by reason of fraud in its inception.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.