
    The People ex rel. The Central Park, North and East River Railroad Co., App’lts, v. The Commissioners of Taxes and Assessments of the City of New York, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Taxes and assessments—Tracks or horse railroad real estate.
    The tracks of a horse railroad company are liable to assessment and taxation as real estate, under the laws of this state.
    2. Same—Certiorari—Denial or statements uncontradicted by evidence conclusive.
    The denial by the commissioners, in their return, of statements contained in a petition for a writ of certioran'i, is conclusive against the relator when such denial is not overcome by evidence taken in the proceeding.
    3. Same—Party deprived or right or questioning legality or assessment BY OMITTING TO PETITION COMMISSIONERS ROR ITS CORRECTION.
    Section 820, chapter 410 of Laws of 1882, provides a remedy for those considering themselves aggrieved, by the assessed valuation of their real and personal estates, and where a relator omits to avail himself of this remedy by reason of the omission, he is deprived of the right of questioning the legality of an assessment.
    Appeal from an order confirming assessments upon the real estate of the relator and dismissing writ of certiorari.
    
    
      Delos McCurdy and B. W. Franklin, for appl’t; George B. Coleman, for resp’ ts.
   Daniels, J.

The writ of certiorari was issued to review and correct the assessments of the relator’s real estate and street railway, made in the year. 1883. It was averred in support of ’the application for the writ, that the valuation made by the commissioners for the assessment of the property, exceeded that which they should have adopted; that the assessments were made at a higher proportionate value, than other real estate, or personal property, on the samé roll; that the personal property of taxable inhabitants had been intentionally omitted, and that the rule adopted for the assessment of real estate did not exceed sixty per cent of its value, and that the relator’s property was assessed at a higher valuation than this percentage By the return of the commissioners the proceedings themselves appear to have been regularly conducted, as they were prescribed by chapter 16 of chapter 410, of the Laws of 1883 And also conformably to the provisions of the Revised Statutes so far as they remained applicable to the proceedings.

The railway of the relator is commonly known as the Belt Line extending around a large portion of the city, and so much of it as was located within the several wards through which the railroad passed was separately assessed as the property of the relator within such ward. This railway, including its bed and superstructure, was real estate within the definition of that description of property contained in chapter 393 of the Laws of 1881. And that it was liable to assessment and taxation under the Laws of the state as real estate had previously been held in People v. Cassity, 2 Lans., 394; affirmed, 46 N. Y., 46, and People v. N. Y. Elevated R. R. Co. v. Commissioners etc., 82 N. Y., 459.

By the return of the commissioners to the writ it appears that after the assessments were made, the books containing them were open for examination and correction from the second Monday of January, 1883, until the first Monday of the following month of May. • And that this fact was advertised according to law. The relator in its petition has stated the fact to be, that during this period, an application in writing, as that was provided for by chapter 16 of the Laws 1883, was made to the commissioners to correct the valuation of the petitioner’s property.

But this has been denied by the commissioners, who have returned that no application was made on behalf of the relator to have the assessed value of its property corrected. And it appears further that the assessments were made, certainly at no greater valuation than the law prescribed and allowed that to be done.

A reference, by consent, was made to a referee to take evidence as to this and other assessments complained of by the relator. But no evidence was obtained under the order which will justify the conclusion that the commissioners proceeded erroneously in the confirmation, or making of the assessments. The return also states the facts to be that the assessments were not made upon an over valuation or at a higher proportionate value than other real estate valued by the commissioners and entered on their books. And in their return they denied the statement that the taxable inhabitants of the city had not been faithfully assessed for personal property for the year 1883, or to any greater extent than fifteen per cent of the value of such "property, or that the real property in the city had not been faithfully assessed for the year, or had not been assessed for more than sixty per cent of its true ássessable value, or that the assessment of the relator had been made at a higher proportionate value than other real or personal property on the same rolls. These denials by the commissioners were'directly responsive to the statements made and contained in the petition for the writ, and are for that reason conclusive against the relator inasmuch as neither denial has been overcome by proof taken under the order of reference.

For the correction of assessments of real estate for the purposes of taxation, a summary and inexpensive proceeding was provided both by the Revised Statutes and the act under which these assessments were made. 1 R. S. (6th ed.), 937, 938, §§ 18-21; chap. 410, Laws 1882, § 820.

The relator omitted to avail itself of this remedy, and by reason of that omission, both under the preceding practice, as well as that provided for by chap. 269 of the Laws of 1880, it deprived itself of the right to question the legality of these assessments. People v. Com'rs of Taxes, etc., 99 N. Y., 254.

The order was consequently right, and it should be affirmed, together with the usual costs and disbursements.

Bartlett, J., concurs.  