
    The People of the State of New York ex rel. Isaac J. Greenwood, Executor and Trustee of the Estate of Isaac J. Greenwood, Deceased, Respondent, v. Thomas L. Feitner and Others, Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Assessment of real property in New York city — a review thereof rests upon the application made to the assessors—what does not establish an overvaluation — what is not a statement that the property is assessed for more than the sum for which it would sell — unrented space, not considered.
    
    An owner of property located on Fulton street in the city of New York which had been assessed for the year 1901 at the sum. of §125,000, presented an application pursuant to section 895 of the Greater New York charter (Laws of 1897, chap. 378) for a reduction of the assessment. The application alleged that in the year 1898 the premises rented for §23,365, and that in 1899 and 1900 the rents fell to $19,266, and that the value of the unrented space exceeded §1,000; that assuming the real value of the property to be $125,000 the average net income thereof was one and three-tenths per cent of such value; that in 1899 the assessed valuation of the premises was §90,000; that in 1900 it was §108,000. The application further stated that the assessment was unjust and unreasonable; that the value of the property in Fulton street had declined for several years and requested that the assessment be reduced to the sum of $75,000, which the applicant stated was a fair and reasonable valuation of the premises.
    The tax commissioners having denied the application, the property owner sued out a writ of certiorari to review their action. The petition for the writ set out the application in full, and submitted, in addition thereto, a table setting forth the assessed value of several pieces of property in the vicinity and claimed that a comparison of such property with the property of the relator would show that the assessment was disproportionate and unequal. Such table did not disclose the market value of the relator’s property nor that of the properties with which it was sought to be compared.
    
      Held, that the relator must stand or fall in the certiorari proceedings upon the case made by him in the application to the tax commissioners;
    That neither the application nor the petition for the writ of certiorari established a case of overvaluation;
    That the statement in the application that $75,000 was “a fair and reasonable valuation ” of the premises was not an allegation that the premises were assessed for a sum greater than that for which the property would sell under ordinary circumstances;
    That in determining the assessed value of the premises the unrented space could not be taken into consideration.
    Laughlin, J., dissented.
    Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of September, "1902, denying the defendants’ motion to quash a writ of certiorari theretofore issued to review an assessment for taxation and granting the relator’s motion for a reference.
    
      David Bumsey, for the appellants.
    
      Joseph M. Proshauer, for the respondent.
   Hatch, J. :

The relator’s testator was the owner of certain real estate known as Nos. 102 and 104 Fulton street, in the city of New York. In the year 1901 the commissioners of taxes and assessments assessed the premises on the assessment roll at $125,000. The relator made an application to the defendants for a reduction of the same. In this application he showed that in the year 1898 the premises rented for $23,365, and in 1899 and 1900 it had fallen to $19,266, and that the value of the unrented space exceeded $1,000; that the total disbursements for taxes, fixed charges and necessary operating expenses during the said three years averaged $17,803.33, leaving an annual net income of $1,699.67, which income was greater in the year 1898 and less in the year 1900; that, assuming the real value of the property to be $125,000, as assessed in 1901, the average net income would be one and three-tenths per cent of such valuation; that in 1899 the assessed valuation of the premises was $90,000; that in 1900 it was $108,000, and in 1901 $125,000; that in 1898 the taxes amounted to $1,876.55, in 1899 to $2,210.80, and in 1900 to $2,427.50. The application further states that this is unjust and unreasonable; that the value of property in Fulton street had declined for several years, and requests that the assessment be reduced to the sum of $75,000, which is a fair and reasonable value of the premises.

.Upon this application the defendants caused the property to.be re-examined by the deputy who made the first examination, and he reported that the assessed valuation of the property is “ equal and in proportion to similar property in the said First Tax District.” And thereupon the defendants denied the application and confirmed the assessment. The relator then sued out a writ of certiorari to review this ruling of the commissioners. The petition for the writ set out the application in full and submitted in addition thereto a table setting forth the assessed value of several pieces of property in the vicinity of the property in question and claimed that a comparison of the properties therein mentioned with the property of the relator would show that the assessment was disproportionate and unequal. In the table submitted in the petition the market value of the properties is not disclosed, nor is the market value of the relator’s property stated. The relator subsequently moved for a reference and for leave to amend the petition, and the defendants moved at the same time to quash the writ. The motion for a reference was granted and the referee was directed to allow numerous amendments to the petition, including an amendment setting forth the claim of overvaluation. From the whole of the order thus made the defendants appeal.

Pursuant to the provisions of section 895 of the charter (Laws of 1897, chap. 378) the application for a reduction of the assessed valuation is required to be in writing and must state the grounds of objection thereto. The application is the matter which sets the assessors in motion in review of the assessment, and the case made by it must show that the relator is entitled to relief; he must stand or fall upon the grounds of error averred therein and is limited in review of the same by writ of certiorari to the case which he then makes. (Matter of McLean, 138 N. Y. 158.) If other objections in fact existed at the time when the application was made, but are not stated therein, they are not available upon a review. In the case last cited it was held that the relator would be precluded from urging that the assessors had no jurisdiction to levy the tax unless such point was taken in the application. It is evident, therefore, that the court was without authority to consider matters averred in the petition or other papers of the relator which were not embodied in the application presented to the commissioners. So limited, it is clear that there was no basis from which an overvaluation of the property appeared, as there is nothing contained in the application showing the market value of the property assessed or that it was higher than other property similarly situated. This ground must be made distinctly to appear before the commissioners are authorized to act upon the application, and the claim must be distinctly made. (People ex rel. Broadway Improvement Co. v. Barker, 14 App. Div. 412.) The relator, therefore, failed to make out a case showing any ground for relief based upon overvaluation in the application which he made; and amendments to his petition cannot enlarge the case contained in the application.

If we consider the petition as amended, the same result follows. The only addition in this respect which is made thereto is a schedule of assessed valuations upon a number of pieces of property. The only averment in connection therewith is, that a comparison of the premises owned by the relator with the others contained in the table shows that the value assessed thereon is much greater than that assessed upon any other property similarly situated, and in market value is entirely disproportionate and unequal. There is nothing showing the market value of the particular pieces of property so scheduled, or the market value of the relator’s property; consequently, there is no basis, even under the petition, for any relief, and, therefore, there is nothing to show that the relator will pay more than his due share of the aggregate tax. (People ex rel. Warren v. Carter, 109 N. Y. 576.)

The relator must, therefore, rest upon his right to review by showing that his property has been overvalued. The proof bearing upon this statement relates to the depreciation in rental value of the property, the whole of which we have heretofore set out. In People ex rel. Sutphen v. Feitner (45 App. Div. 542) it was held that it was incumbent upon the relator to show, in order to establish overvaluation, that his property was assessed at a greater sum than that for which under ordinary circumstances it would sell. In that case it was stated “ that the market value of the property had not increased since 1895, and that the ability to sell the property had, in fact, decreased; and then were stated the sums at which the property was assessed in 1895 and 1896; ” there was nothing to show that in these years it was assessed at its true market value. This averment was held insufficient to establish a case of overvaluation. In the present case there is an entire absence of averment that the assessment is greater than the fair market value of the property, or for a sum greater than that for which the property would sell under ordinary circumstances. The statement is that $75,000 “is a fair and reasonable valuation of these premises, as aforesaid.” Clearly, this is insufficient. The rule announced in the Sutphen Case (supra), which is controlling of this appeal, was adopted in People ex rel. Zollikoffer v. Feitner (63 App. Div. 615). The latter case was affirmed on appeal (168 N. Y. 674).

In addition to this, it appears in the statement that the “ unrented space in the premises exceeded one thousand dollars.” How much it exceeded this sum is not made to appear. The relator would not be entitled to escape taxation upon the fair value of his property, even though it were vacant and produced no income. The unrented space cannot be deducted in arriving at its assessed valuation; and from all that appears, it may be that if the whole were rented, the income therefrom, based upon rental values, would show that the assessed valuation was proper.

It is clear, therefore, that the relator failed to make a case in his ■application which entitled him to a reduction of the assessment, and the motion to quash the writ should have been granted. The order ■should, therefore, be reversed and the writ of certiorari quashed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Laughlin, J., dissented.

Order reversed and writ of certiorari quashed, with fifty dollars «costs and disbursements.  