
    The People ex rel. The West Shore Railroad Co., App’lt, v. Victor Adams et al., Trustees of Little Falls, Resp’ts. The People ex rel. The West Shore R. R. Co., App’lt, v. Warren Edick et al., Trustees, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    1. Taxes—Villages—Powers of trustees of Little Falls as to railroad LANDS.
    Although the general statutes do not require town assessors to assess the real property of an individual or corporation separately according to the particular district or locality in the town where it may be located, there is no objection to their exercising this discretion, and where they have made a separate assessment for lands within a" village, it furnishes on the face of the roll the valuation of the property within such village which the trustees are bound to adopt and follow, unless subsequent changes in valuation have occurred.
    3. Same—Little Falls. .
    The village assessors of Little Falls are bound in making up the general village tax roll to adopt “ as far as practicable,” the valuations of railroad lands made the previous year by the assessors of the towns of Little Falls and Danube, portions of both of which towns were included in said village. The power given by the charter of the village of Little Falls to the trustees to “reduce or add to the valuation” is confined to the exceptional cases mentioned therein, “for increased value by reason of improvements, or for diminished value by reason of damage by fire or flood.”
    3. Same—Laches.
    A party complaining of an assessment, who has neglected to appear before the assessors or body authorized under the system provided by the tax laws to correct an erroneous assessment and seek his remedy there, cannot after the tax has become confirmed avail himself of the remedy given by the act of 1880.
    These appeals are from orders of the general term of the fourth department reversing orders of the special term in certiorari proceedings taken under chap. 269 of tne Laws of 1880, to review assessments of the relator’s property in the village -of Little Falls, made by the village trustees in the years 1886 and 1887. The orders of the special term reduced the assessment of 1886 from $40,000 to $18,661 and the assessment of 1887 from $40,000 to $19,200.
    The village of Little Falls includes territory in both the town of Little Falls and the town of Danube, across which the track of the relator, The West Shore Railroad, is laid upon land owned by the company and its track is continued also through the territory of the two towns outside of the village. The real estate of the company in said village in 1886 and 1887, at the time of the assessments in question, consisted of about nineteen acres of land, and upon that part within the town of Little Falls in addition to the tracks of the company were a station house, freight house and three dwelling houses. In 1885 the assessors of the town of Little Falls assessed the property of the relator in the town (including as well the property within the village of Little Falls as that outside of it) at the sum in the aggregate of $40,000, the entry on the assessment roll being, “New York, West Shore & Buffalo Railway Company, 45 57-100 acres of land, district Ho. 1, $15,000; district Ho. 5, $12,500 ; district Ho. 8, $12,500; total amount of real estate $40,000.” The assessment of the town in 1886 was in. substantially the same form. In 1885 the assessors of the town of Danube assessed the property of the relator in that town (including its property in that town lying within the village of Little Falls) at the aggregate sum of $60,000 and filed in the town clerk’s office a certificate of apportionment, apportioning the valuation among the school districts in the town and the apportionment to school district Ho. 1, was $3,661. The assessment of the relator’s property in the town of Danube in 1886 on the town assessment roll was $60,650.
    The assessment roll also cdptained the following entry: “West Shore Railroad apportionments of the several school districts in the town of Danube : District Ho. 1 is apportioned $19,600; district Ho. 3 is apportioned $16,000; district Ho..5 is apportioned $25,850; Little Falls district Ho. 1 is apportioned $4,200.” Little Falls school district Ho. 1 is wholly within the village of Little Falls and embraces all the territory of the town of Little Falls and Danube included in the village, and all the property of the relator liable to taxation .for village purposes is situated within said district. In 1885 the village assessors assessed the property of the relator in the village at $20,000. In 1886, the clerk of the village, preparatory to making the village assessment of that year, copied the assessment roll of the town of Little Falls of the previous year (1885), and in respect to the relator’s property incorporated the assessment as it stood on the town roll, viz: as consisting of 45 47-100 acres of land of the valuation of $40,000, but omitting the valuation apportioned therein to school district Ho. 1 of $12,500.
    The land of the relator in the whole town of Little Falls consisted of 45 47-100 acres, of which only about 14 acres were within the village. The village assessors, however, adopted the assessment as copied from the town roll, and the village tax of 1886 against the relator purported to be on 45 47-100 acres of land at the valuation of $40,000.
    The village tax of 1887, was made in substantially the same way.
    The village clerk in making a copy of the assessment roll of the town of Danube in 1886 and 1887, seems to have wholly disregarded the assessment of the relator’s property on that town roll, and the village assessments in these years do not appear to have been based on any specific valuation of the relator’s property therein. It consisted of about five acres of land and was, as may be inferred, of .comparatively little value. There had been no change in the property of the relator subject to village taxation, and no increase in value from the time of the assessment made Toy the towns of Little Falls and Danube respectively in 1885, up to the making of the village assessments in 1886 and 1887. In each of the years 1886 and 1887 the trustees of the village paused notice to be published that the assessment rollas copied by the clerk, and amended and changed by the trustees, would be left for inspection at a place named, and that the trustees would meet to hear objections, etc., but no notice was given at any time of the final completion of the roll.
    The relator did not appear on grievance day in 1886 to object to the assessment, because, as was claimed, it had been informed that the valuation of its property would be the same as in 1885, but it did appear in 1887 and objected to the assessment of that year. The roll in neither year was verified. The relator, on March 25, 1887, applied for a certiorari to review the assessment of 1886. The assessment roll of that year was then in the' hands of the collector of the village, but he returned it to the village clerk March 29, 1887, before the return to the certiorari was made. Similar proceedings were taken by the relator October 11, 1887, to review the assessment of that year, the assessment roll being then in”the hands of the collector. He made return on his warrant January 3, 1888, prior to the decision of the special term. The relator had paid its tax in each year prior to the application for the certiorari. The reduction made by the special term was made to conform the assessments in each of the years 1886 and 1887 to the apportionments made by the town assessors of the towns of Little Falls and Danube in the year preceding the village assessments of the valuation of the relator’s property to school district Ho. 1.
    Other facts appear in the opinion.
    
      Hamilton Harris, for app’lt; Myron G. JSronner, for resp’ts.
    
      
       Affirming 33 N. Y. State Rep., 398.
    
    
      
       Reversing 33 N. Y State Rep., 404.
    
   Andrews, J.

The defendants are undoubtedly right in their contention that the act, chap. 694, of the Laws of 1867, was intended to regulate valuation in towns of property of railroad corporations for purposes of school district taxation only, and that the statute does not contemplate that the apportionment therein provided to be made should be indicated on the town assessment roll, but by a certificate of the assessors, to be prepared and filed in the town clerk’s office after the roll is completed. This will plainly appear by a brief reference to the statutory system of taxation for school purposes, as supplemented by the act of 1867.

The statute, chap. 555, Laws of 1864, §§ 15, 65, provides for the assessment in each school district of the state of taxes for certain school purposes, upon their being voted at a district meeting, and, when authorized, they are to be assessed upon all the real and personal estate in such district, including the property of corporations liable to taxation therein. By § 67 of that act the valuation of property for the purposes of school district taxation is to be ascertained as far as possible from the last assessment roll of the town. By chap. .694, of the Law's of 1867, entitled “An act in relation to the valuation of the property of railroad companies "in school districts for the purpose of taxation,” it is made the duty of the town assessors, within fifteen days after the completion of their annual assessment list, to apportion the valuation of the property of every railroad company appearing on such list “ among the Several school districts in their town, in which any portion of said property is situated,- giving to each of said districts their proper portion according to the proportion that the value of said property in each of such districts hears to the value of the whole thereof in said town.” Sec. 1.

The second section of the act declares that the apportionment shall be in writing, signed by the assessors, or a majority of them, and shall set forth the number of each district, and the valuation apportioned to each, and that it should be filed in the office of the town clerk by the assessors within five days after being made, and the section concludes by declaring that “ the amount so apportioned to each district shall -be the valuation of the property of each of said companies, on which all taxes against said companies in and for said districts shall be levied and assessed until the next annual assessment and apportionment.”

The third section authorizes the supervisor of the town to niake the apportionment on the application of the trustees or board of education of any district, or of any railroad company, if the assessors shall neglect to make the same.

This act was extended by chap. 414 of the Laws of 1884, so as to embrace the property of telephone, telegraph and pipe line companies. The sole object of this act, as is manifest from its title and provisions, was to prescribe the basis for taxing the property of railroad companies for school district purposes, and how the valuation should be ascertained as between school districts, where the company had property situated in several school districts within the town. It had no relation to general taxation for town purposes. But it made the valuation of the last town assessment roll the valuation for school district taxation, and where the property was situated in several school districts each was to be apportioned by the assessor out of the aggregate valuation its proper share to be specified in the certificate of apportionment. The statute does not make the certificate a part of the town roll. It contemplates a separate and distinct paper to" be made and filed after the roll is completed.

The scheme of taxation in the village of Little Falls, for village purposes, is prescribed in the village charter. The charter, chap. 158, Laws of 1873, § 39, declares as follows: “ The trustees shall constitute the board of assessment of the village for the purpose of valuation and taxation; the trustees shall cause to be copied from the last assessment roll of the several towns, parts of which comprise" the territory of said village, the names and valuation of all persons and corporations taxable within the village, as made by the town assessors, and the same shall be deposited with the clerk of the board, or one of the trustees, subject to inspection by any person interested.”

Then follows a provision requiring that notice shall be published that the roll has been deposited for inspection, and appointing a time and place when and where the trustees will meet to hear objections and make.corrections, and the section concludes as follows: “ The said town valuation shall be adopted by the trustees for the valuation of the property thereon within the village, subject to be assessed for village taxes, as far as practicable, subject, however, to be corrected of any errors which may appear thereon, or for any change of ownership of property, or for increased value by reason of improvements, or for diminished value by reason of fire or damage by flood, and subject to have the names of persons added or omitted, with valuations accordingly, as changes have taken .place, or when names or property have been omitted which are subject to taxation, and may reduce or add to the valuation, and the trustees are hereby invested with the same powers within the village in respect .to valuation and assessment of taxes, including the power to administer oaths, as town assessors have in respect to the valuation and assessment in towns.”

. It is contended on behalf of the relator that the village assessors in making the assessments of the relator’s property in 1886 and 1887 violated the charter in that they did not adopt the valuation made by the towns of Little Falls and Danube, appearing on the town assessment rolls in the year preceding the respective assessments. The answer made to this complaint is two fold; first, that the charter requires the trustees to adopt the town valuations only “ so far as practicable,” and that as the town valuations related to the aggregate property of the relator as well that within as that outside of the village the adoption of those valuations was impracticable, and second, that the provision in the charter that the trustees may “reduce and add to the valuation,” and conferring upon them the powers of town assessors, authorized the trustees in their discretion to change the-town valuation and in substance make an original assessment of the relator’s property when in their judgment it was proper to do so. ."We think neither of these answers is sufficient

It is very apparent from reading the evidence that the increase of the village assessment of the relator’s property from $20,000 in 1885, to $40,000 in 1886, originated in a mistake of the village clerk in copying the town assessment rolls. The whole acreage and valuation appearing on the town assessment roll of the town of Little Falls was copied by the clerk in preparing the village roll. It was thus made to appear that the relator owned 45 47-100 acres of land, of the valuation of $40,000, in the village, whereas that was the whole quantity owned by the relator in the town and of which only about fourteen acres were within the village. The clerk omitted to copy the town valuation in the town of Danube and apparently omitted from the list the five acres owned by the relator in the. village included vtithin the limits of that town. When the trustees of the village acting as assessors came to examine the assessment roll copied by the clerk, they left the assessment against the relator to stand as copied, neither correcting the error in the acreage nor changing the valuation.

There is evidence that they examined the property and considered the question of valuation and reached the conclusion that the valuation of $40,000 was the fair and just value of the relator’s property within the village. But it is clear from the evidence that in reaching this conclusion they wholly disregarded the valuation of $12,500 apportioned in the town assessment roll of the town of Little Falls as the valuation of that part of the relator’s property in the town within the village. This was, we think, erroneous.

By § 39 of the village charter the valuation of property in the town assessment rolls was made the general rule of valuation for village taxes. The assessors of the village were required to adopt these valuations “ as far as practicable,” subject to certain exceptions. The valuation of the relator’s property in the town of Little Falls lying within the village was plainly indicated on the assessment roll of that town. The fact that it was primarily inserted as a way of discharging the duty of the town assessors to apportion the whole assessed value of the relator’s property in the town among the school districts as prescribed b^' the act of 1867, does not alter the fact that it stood as a valuation by the town assessors of the relator’s property within the village. The general statutes, it is true, do not require town assessors to assess the real property of an individual or corporation separately, according to the particular district or locality in the town where the property may be located. But we can perceive no objection in. point of law to their exercising this discretion. In this case it was done for a particular purpose and whether or not it was a compliance with the law of 1867, it did furnish on the face of the assessment roll the valuation of the relator’s property in the town of Little Falls located within the village, and this valuation the trustees were, we think, bound to adopt and follow, unless, indeed, the valuation made by the town assessors had changed by reason of circumstances mentioned in § 39, which is not claimed.

The error in the assessment of 1886 was not cured because of the fa.ct that in the valuation of the relator’s property by the town assessors of Danube in 1885 the valuation of that part of it within the limits of the village was not separately stated, thereby rendering it necessary that the trustees should make an original valuation of that portion of the relator’s property. They were bound to follow the town valuations as far as practicable, and in making the assessment they paid no attention to the valuation on the town roll of the town of Little Falls. That at least should have been incorporated as an element of the assessment.

The second answer to the allegation of error, viz: that the trustees had an absolute right to disregard the town valuations under that clause in § 39 of the charter which declares that the trustees “ may reduce or add to the valuation,” depends upon the construction of this clause in its relation to the other parts of the section. We concur in this respect in the opinion of one of the judges below, that the power given by the section to “ reduce or add to the valuation ” is confined to the exceptional cases mentioned therein. By the prior clauses in the section power was given to the trustees to add to or change the town assessments in certain specified cases, and among others “'for increased value by reason of improvements or for diminished value by reason of damage by fire or flood.” It is difficult to suppose that the legislature after specifying these cases, could have intended by the subsequent general words to give an unrestricted power to the trustees, in every case where in their judgment the valuation was erroneous, to change- the valuation appearing on the town rolls. The assessment of 1887 was erroneous for the same reasons as the assessment of 1886 and for the additional reason that the assessment roll of the town of Danube for the year 1886 contained a separate valuation of the railroad property of the relator within the village. The point is urged that the relator has lost his remedy under the act of 1880 by laches.

This court held in the case of The People ex rel. Tel. Co. v. Commissioners of Taxes, 99 N. Y., 254, that a party complaining of an assessment, who had" neglected to appear before the assessors or body authorized under the system provided by the tax laws to correct an erroneous assessment, and seek his remedy there, could not, after the tax had become confirmed, avail himself of the remedy given by the act of 1880. We are of ojainion that this case applies and bars this proceeding as to the tax of 1886. The relator did not appear on grievance day to have the assessment corrected, but relied on information, not qfficially given, that the assessment would be the same as in 1885. This is rather a case of , over-assessment than of a void assessment, as. to which possibly a definite rule would apply. The trustees had jurisdiction to assess the relator. They adopted an erroneous principle of valuation. The proceeding, as to the assessment of 1887, stands on a different footing. The relator did appear and object to the assessment in that year, and unavailingly. sought its correction.

The point that the certiorari was not brought in time is answered by the fact that no notice was ever published of the final completion of the roll, and that the limitation prescribed in § 9 of the act of 1880 does not, therefore, apply, and also by the cases of People ex rel. R. R. v. Haupt, 104 N. Y., 377; 5 N. Y. State Rep., 770; People ex rel. R. R. v. Hicks, 105 N. Y., 199; 7 N. Y. State Rep., 359: People ex rel. Church Holy Communion v. Assessors, 106 N. Y., 671; 8 N. Y. State Rep., 709. The fact that the assessment rolls, of which correction is sought, were not in the posssession of the trustees when the writs were issued is, we think, unimportant. Under the act of 1880, the original assessment rolls are not required to be returned in answer to the writ. They were in possession of the trustees or the clerk when the orders of the special term were made, and, moreover, the act contemplates granting of relief, although the tax may have been collected, by reimbursement the following year.

We think the order of the general term reversing the order of the special term, based on the tax of 1886, should be affirmed, and that the order reversing the order of the special term, based on the tax of 1887, should be reversed, and the order of the ■special term affirmed, without costs of this appeal to party. either

All concur.  