In two tax certiorari proceedings to review tax assessments and assessed valuations for the year 1960 on certain parcels of real property and the improvements thereon in the City of Yonkers, the city officials appeal from orders of the Supreme Court, Westchester County, dated August 21, 1961 (one order being erroneously dated April 21, 1961 in the [Hampton] record), which denied their motions, made pursuant to section 293 of the Civil Practice Act, to examine petitioners during trial concerning the several items specified in the orders to show cause initiating such motions, and to permit the city's real estate appraiser physically to inspect petitioners' real property. In each proceeding: order reversed, without costs, and motion granted. The city seeks to examine petitioners and their property for the purpose of showing (1) that the actual full value of their property is greater than that shown in the assessment roll and (2) that the assessed value is 70% of the actual full value. Under the peculiar facts disclosed by these records, special circumstances exist which warrant the granting of the motions under section 293 of the Civil Practice Act.
Beldock, P.J., Ughetta and Christ, JJ., concur; Kleinfeld and Brennan, JJ., dissent and vote to affirm the orders, with the following memorandum:
In our opinion there are no special circumstances here which justify the departure from normal trial procedure. All the information now sought by the city could and should have been obtained by the exercise of its plenary power of examination of the protesting taxpayer under section 512 Real Prop. Tax of the Real Property Tax Law. It was incumbent upon the city to have first exhausted its remedies under that section. Its unexplained failure so to do cannot now be deemed to give rise to "special circumstances" justifying relief under section 293 of the Civil Practice Act.