
    Paddock v. Lewis et al., Assessors, Etc.
    
      (Supreme Court, General Term, Fourth Department.
    
    February 11, 1890.)
    1. Certiorari&emdash;Where Returnable&emdash;Waiver of Objections.
    The omission to make a writ of certiorari to review an assessment returnable to a special term, as required by Laws N. Y. 1880, c. 269, § 2, is cured by a full and voluntary appearance of the respondents, at a special term not named in the writ, a stipulation to refer, and a failure to move to dismiss the complaint.
    2. Taxation&emdash;Certiorari to Review Assessment&emdash;Non-Residents.
    The right to a writ of certiorari to review an assessment against the personal property of one claiming to be a non-resident is not lost by his failure to appear before the assessors on grievance day and object, where it appears that the assessors were fully aware of his claim, and that his appearance before them would have been futile.
    8. Same&emdash;Custody of Assessment Roll.
    Nor is it material that the assessment roll had passed out of the assessor’s hands when the writ was issued.
    Appeal from an order of the Onondaga special term, April, 1889, quashing a \\ rit of certiorari issued, under chapter 269 of the Laws of 1880, for the purpose of reviewing an assessment for personal property in the town of Elbridge against the relator. The grounds upon which the writ was quashed were, as stated in the order, as follows: “(1) Said writ is not made returnable to a special term of this court, as by statute required; (2) after personal and due legal notice duly given by said assessors of the hearing of grievances, said re- ‘ lator failed to appear and make complaint of his assessment, and so is barred of any remedy by writ of certiorari, as provided by statute. ”
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Waters, McLennan & Waters, for appellants. Hiscock, Doheny & Hiscock, for respondents.
   Merwin, J.

It is claimed by the relator that the writ was, in effect, returnable at a special term, and, if not, that the defect has been waived. The writ in this case was allowed at the Onondaga special term, September 1, 1888, and was returnable “within twenty days after the service on you of this writ at the office of the clerk of Onandaga county,-, so that our supreme court may further cause to -be done thereon what of right, and according to law, ought to be done.” Service was made on the assessors on the 12th September, and on the supervisor on the 14th September. On the 15th October, 1888, the assessors filed with the clerk of Onondaga county their return, in which, in the first place, they answer upon the merits, claiming, in substance, that the assessment is correct. For a further and second return, they say they except to the writ as improper and irregular, inasmuch as it is not made returnable at a special term. For a third return, they allege the relator is barred by reason of his failure to appear and object on grievance day; and, fourthly, they say they are improper parties, as the assessment roll, at the time of issuing of the writ, was in the possession of the supervisor. The return of the supervisor is filed the same day, and is substantially the same, except the fourth answer is omitted. Each return is directed to the supreme court, and is signed by the parties and their attorneys. The next thing that occurred, so far as the record before us shows, was the making of an order in the matter by the Onondaga special term, December 20, 1888. In this order after reciting that a writ had been duly granted, and the respondents had filed their return thereto, and the matter had been brought on for hearing, and that it appeared to the court that testimony was necessary for the proper disposition of the matter, and that the parties had stipulated to refer the matter to a referee named, it was ordered that the matter be referred to the referee named, to take the evidence as to the matters in issue between the parties, .and report the same to the court.

The parties appeared before the referee on the 4th January, 1889; and before any evidence was taken the defendants made the objection that all the proceedings were unauthorized, because the writ was not returnable at special term. Ho ruling on this was made by the referee. Evidence was taken before him on several days. He made his report March 13, 1889; and this was before the court on April 20, 1889, when the order appealed from was made.

The statute (chapter 269 of 1880, § 2) provided that the writ “shall be made returnable at a special term in said district.” Very likely, this called for the designation of some particular term at which the return should be made. Still, after the service of the writ, both parties appeared at the Onondaga speciál term on the 20th December, 1888; and such proceedings were then taken as would have been authorized had that term been named in the writ. How that term was in fact fixed upon, does not appear. It is to be presumed that both parties voluntarily appeared there. The appearance, so far as the order would indicate, was general, and upon a writ “duly granted.” Ho motion to dismiss for any irregularity or defect was made. On the contrary, the parties stipulated that the matter be referred,—a proceeding that was not necessary or proper, if the defect in the writ was to be insisted on. Before the referee the point was taken, but he had no power to rule on it. The voluntary and full appearance at the term on the 20th December, and the stipulation to refer, and failure then to move to dismiss, should be held to be a waiver of the defect complained of. The voluntary acts of the parties fixed the term on the 20th December as the term for the return of the writ.

Is the relator barred of any remedy under the act of 1880 by reason of his failure to appear and object on grievance day? The assessment attacked is one for personal property. The relator claims he was not a resident of the town of Elbridge, and that, therefore, the assessors had no jurisdiction to assess him. In People v. Commissioners, 99 N. Y. 256, 1 N. E. Rep. 773, it was said, with reference to an assessment in Hew York city, that it would be an unwarrantable construction of the statute to permit a party complaining of an assessment to lie by without availing himself of the opportunity to remedy his grievances by application to the tax commissioners, under the statute of 1859, and, after the assessment had become confirmed by the lapse of time, to arrest the collection by a proceeding under the act of 1880. In this case (see same case, 31 Hun, 570,) it was not disputed that the relator was subject to taxation in the city of Hew York. The only question was as to the amount. The act of 1859, c. 302, gave the party, from the 2d of January to the 1st day of May, an opportunity to apply for correction. It also provided that no reduction should be made by the board of supervisors of any assessment, unless it appeared under oath that the party aggrieved was unable to attend within the period prescribed for the correction of taxes by reason of sickness or absence from the city. It also provided for a review on the merits by certiorari, and this was not affected by the act of 1880. See section 10. In People v. Bank, 39 Hun, 525, there was a similar ruling with reference to an assessment in Hew York city. In People v. Osterhoudt, 24 Wkly. Dig. 101, where the relator resided in, and was a taxable inhabitant of, the city of Kingston, and had in his possession certain personal property for which he was by the assessors of that city assessed, but which he claimed belonged to another party, it was held that the assessors had jurisdiction of the matter of the assessment, and that the relator, having failed to object in season, had no remedy by certiorari under the statute. In People v. Gray, 45 Hun, 243, it was held not to be necessary for the relator to show that he had appeared before the assessors or made objection during the period the roll was open for inspection and correction. The case related to an assessment on real estate. It was said that the only condition to the allowance of the writ is that it shall be allowed within 15 days after the completion of the roll and the giving notice thereof, as required by the act. The case in 99 N. Y., 1 N. E. Rep., is referred to and distinguished. In People v. Assessors of Lewiston, (unreported,) it was held by Justice Barker that appearance before the assessors was not a prerequisite to the right to obtain the writ. In Association v. Mayor, etc., 4 Hun, 446, it was held that where a tax is imposed upon property exempt by law the omission to appear before the commissioner of taxes does not give validity to the assessment. Douglass v. Board, 1 N. Y. Supp. 126, it is said the provisions requiring parties to appear before the assessors and state their grievances only apply to cases within the jurisdiction of the assessors. A party outside of the jurisdiction is under no obligation to appear before the assessors, and he cannot be presumed to know that an illegal tax is about to be assessed against him. In case the party appears before the assessors, and afterwards obtains the writ, he is not limited to the questions raised before the assessors. People v. Assessors, etc., 7 N. Y. Supp. 101.

In the absence of any statutory requirement to that effect, can it be fairly said that the relator was bound to appear before the assessors, and litigate there, before them, the question of their jurisdiction to act? They knew, as appears from the evidence, that he claimed he was not a resident of their town. There had been previous controversy on the subject. It is quite apparent that any appearance by him before them would have been entirely futile. The case in 99 N. Y. 254, 1 N. E. Rep. 773, is clearly distinguishable from this. Under the circumstances of this case, we are of the opinion that the failure of the relator to appear before the assessors does not bar him of his remedy under the writ.

The respondents, in their points, discuss the merits of the case, and claim that the assessors correctly decided that the relator was a resident of their town for the purpose of taxation on personal property. This was not passed upon at special term, as indicated by the order appealed from, and it is not, therefore, proper to consider it here. ISTor is the point available that the assessors did not have the roll at the time of the issuing of the writ. The statute contemplates that it may be out of their hands. Section 2 of the act of 1880; People v. Hicks, 105 N. Y. 198, 11 N. E. Rep. 653; People v. Carter, 47 Hun, 446. It follows that the order quashing the writ should be reversed. Order reversed, with $10 costs and disbursements, and proceedings remitted to-special term for further action^ All concur.  