
    The People ex rel. The New York Hotel & Restaurant Co. et al., App’lts, v. Edward P. Barker et al., Com’rs of Taxes, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 19, 1893.)
    
    1 Taxes—Application fob behission—Cobpobations.
    Section 822 of the consolidation act is applicable as well to domestic cor-orations as to individuals.
    2. Same.
    When a domestic corporation, by the absence of illness of all its officers and agents who had charge of the matter, is prevented during the proper time from making an application for correction of a tax against it, such corporation may afterward make the application under § 822.
    Appeal from order of the supreme court, general term, first department, affirming order denying motion for a peremptory writ of mandamus.
    
    
      Alfred B. Cruikshank, for app’lts; D. J. Dean, for resp’ts.
    
      
      Reversing 58 St. Rep., 590.
    
   Earl, J.

The relator, the Hotel and Eestaurant Company, is a domestic corporation, having its principal place of business in the city of New York, and its personal property was assessed for the purposes of taxation for the year 1892 at the sum of $200,000.

It is provided in the consolidation act relating to tbe city of New York, chapter 410, Laws of 1882, §§ 817, 818, 819 and 820, that the assessment books shall be kept open by the commissioners of taxes and assessment for examination and correction from the second Monday in January until the first day of May in each year, and that during that time application may be made by any person considering himself aggrieved by the assessment of his personal or real estate to have the same corrected.” Section 822 provides as follows:

“Sec. 822. The commissioners of taxes and assessments are hereby invested with power to remit or reduce a tax imposed upon real or personal estate. It shall require a majority of the commissioners to correct or reduce the assessed valuation of the personal property of any person, and no tax on personal property shall be remitted, Canceled or reduced unless the applicant or party aggrieved shall satisfy the commissioners that he has been prevented by absence from the city or by illness from making his complaint or application to them within the time allowed by law for the correction of taxes. Any remission or reduction of taxes upon real .estate must be made within six months after the delivery of the books to the receiver of taxes for the collection of such tax. The board of aldermen shall have no power to remit or reduce any tax.”

Within the six months specified in this section the relator applied to the commissioners upon affidavits to have the assessment canceled and removed from the assessment books, upon the ground that the corporation had no personal property liable to assessment, and the commissioners, after hearing the relators and reading the affidavits, determined that their application should be dismissed, and they refused to pass upon the merits of the same, upon the sole ground “ that the said commissioners had no power to entertain or grant the same, for the reason and claiming that a domestic corporation, having its place of business in the city of New York, could not be prevented by absence or illness from making complaint within the meaning of the Consolidation Act.”

The relators then applied to the special term for a writ of mandamus, directed to the commissioners, commanding them to entertain and consider their application for the cancellation of the assessment. Their application was denied upon the same ground taken • by the commissioners, and the order denying the writ was affirmed by the general term upon the same ground.

We think the construction of section 822 by the commissioners and the courts below is too. narrow, and that the section is applicable as well as to domestic corporations as to individuals. It is a remedial provision of law which should be fairly and comprehensively construed, with the view of giving all parties aggrieved the benefit of the remedy therein provided. The purpose of the provision is to prevent unjust and unequal taxation, and no reason can be perceived for denying the application to domestic corporations. Literally speaking, a domestic corporation cannot be “ sick ” or “ absent from the state; ” but corporations must act through their officers and agents, and if they are all absent from the state or are prevented by sickness from making the application within the time limited by the prior sections, we know of no reason why they should not have the benefit of section 822. The terms “he,” “his” and “person,” used in the statute, may comprehend a corporation. Various decisions and authorities upon this subject are found in the brief for the appellants, and are referred to without repeating them here. There is no reason why the party aggrieved in such a case may not act by an agent who has sufficient knowledge of the facts to present the proofs, and if the party should be absent from the state, or confined by illness to his house for several months,, it would be a very narrow construction of the statute to hold that he could not appear and make the application under that section by an agent or attorney who had sufficient knowledge of the matter. We have held that on what is called “grievance day,” the person assessed may appear by agent to procure a reduction or correction of an assessment made against him. Matter of Corwin, 135 N. Y., 245; 48 St. Rep., 238.

So, too, we think it is a fair construction of this section that if the owner of property residing in the city of New York, places his entire business in the hands of an agent who has full knowledge in respect thereto, such agent may appear for the owner and make the requisite proof upon an application for the correction of an assessment; and if that agent be prevented by absence from the state, or illness during the proper .time from making the application, it may be made afterward under this section. In such case the party assessed has been 'prevented by “ absence from the state ” or by “ illness," to wit, by the absence or illness of his agent from making the application. So when a domestic corporation, by the absence or illness of all its officers and agents who had charge of the matter, is prevented during the proper time from making the application, such corporation may afterward make the application under § 822.

It is undoubtedly true that this section may be construed as it has been by the commissioners and the courts below; but we think the intention of the legislature and the beneficient purpose of the provision will be best subserved by the construction we give.

Our conclusion, therefore, is that the orders of the general and special terms should be reversed and the case remitted to the special term for its action upon the application for the peremptory writ; and that the appellants recover their costs in all the courts of the respondents.

All concur.  