
    The People of the State of New York ex rel. Morris Littman, Respondent, v. James L. Wells and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Tax — increase of assessed valuation after the assessment boohs are open — it cannot be made without notice to the owner — otherwise the increase is not simply erroneous, but illegal — remedy by certiorari — when a tax is erroneous.
    
    The board of tax commissioners of the city of New York has no power to increase the assessed valuation of any real or personal estate after the assessment books are open for correction and review without giving the property owner, the notice required by section 896 of the Greater New York charter, nor has it any authority to increase the assessed valuations after the thirty-first day of March, when the books are closed.
    In such a case the assessment'is not deemed erroneous, but to the extent of the increase it is absolutely illegal and void, and such illegal excess may be canceled in a proceeding by certiorari.
    The affected property owner is not bound to. make application to the board of taxes and assessment for relief .as a condition precedent to Ms right to institute a proceeding by certiorari.
    A tax is deemed erroneous when it has been assessed at an overvaluation, or, if the subject be real estate, when the assessment, although it may not be for the full market value of the property, is unequal in that it has been assessed at a higher proportionate value than other property upon the same roll.
    Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of Hew 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 21st day of September, 1903, denying the defendants’ motion to quash a writ of certiorari .theretofore issued herein.
    
      James M. Ward, for the appellants.
    
      Arthur Neville, for the respondent.
   Laughlin, J. :

The object of this proceeding is the cancellation of an increase in the assessed valuation of four parcels of land owned by the relator, upon the ground that to the extent of such increase the" assessment is illegal and void. The premises were duly appraised for taxation and reported to the board of taxes and assessments by a deputy tax commissioner within the time prescribed by section 889 of the revised Greater New York charter (Laws of 1901, chap. 466), and thereafter the board caused the assessments as thus reported to be entered in the annual record, pursuant to the provisions of section 892 of the. revised charter. Public notice was then given that the annual record had been prepared and would be open for inspection and correction from the second Monday of Januaiy until the 1st day of April, 1903. Subsequently and during the month of January the petitioner examined the annual record and ascertained therefrom the assessed valuation of his respective parcels. At this time the annual record showed the assessed valuation of three parcels to be $20,000 each, and of the other $76,000, as the same had been valued and reported by the deputy tax commissioner. The petitioner made no complaint or application to the board concerning these assessed valuations. He shows that after the 31st day of March, 1903,. without notice to him, the commissioners erased these valuations and in the next blank column in the record, headed “ Corrected Amount,” inserted opposite the parcels originally assessed at $20,000 each, valuations of $35,000, $40,000 and $45,000 respectively, and opposite the parcel originally assessed at $75,000 a valuation of $100,000, and that he was not aware of such increase until after the first day of May.

The appellants contend that the motion to quash the writ should have been granted because the petitioner does not show that he made application to the board for the relief which he now seeks at the hands of the court. We deem this contention groundless. The ¡ relator does not ask that the . entire assessed valuation he stricken from the roll as- illegal. His complaint only relates to the increase of valuation. He. Concedes the validity of the original assessment, and does not ask that it he disturbed. He merely desires that the 1 increase in valuation be canceled or, in other words, that the assessed ; valuation as thus increased be reduced to the original valuations upon the ground that to the extent of the increase the valuation is illegal and void for want of jurisdiction on the part of the board of tax i commissioners to make the same., He does not challenge the jurisdiction of the board generally or challenge their right to act in the "premises, and if he did, perhaps,- he would not have a remedy - by- ' certiorari. (People ex rel. D. & H. Canal Co. v. Parker,117 N.Y. 86 ; Van Deventer v. Long Island City, 139 id. 133 ; United States Trust Co. v. Mayor, 144 id. 493.) The assessments appear to be regular and valid. It is true that the roll shows that they were ■ increased, but the commissioners are authorized by section 896" of the revised charter to increase assessed valuations upon giving the tax- ¡ payer notice and an opportunity to be heard as required by the statute. His complaint is that this úras not done and that, therefore, to the ^ j extent of the increase the assessment is illegal. He had no notice of j the iticrease and, therefore, he could not apply within the .statutory j time to have the increase canceled. Hor was such an application a j condition precedent to his right to institute this proceeding. The j revised charter, I believe, now contains no express provision requiring : an application to the commissioners as a condition precedent to the remedy -by certiorari (§ 906); but the courts proceed on the assumption that section 250 of the Tax Law (Laws of 1896, chap. 908) is applicable to certiorari proceedings instituted to correct erroneous taxes levied in the city of Hew York. That section, however, only requires that the petitioner should show that an application has been made for the correction of an assessment.':: This evidently relates- to Cases where - the claim is that the assessment is erroneous. Both the Tax Law and the revised charter recognize a distinction between erroneous and illegal assessments, and provide a remedy by certiorari in either -case. (Tax Law, § 253; Be vised ;j Greater H. Y. Charter, § 906.) A tax is deemed erroneous when it has been assessed at an overvaluation or, if the subject be real estate, when the assessment, though it may not be for the full market valué of the property, is unequal in that it has been assessed at a higher proportionate value than other property upon the same roll. These are cases where an application to the assessing officers is a condition precedent to the right to a review by certiorari. The reason for the application in these cases is manifest. If it be claimed that the property has been assessed at more than its fair market value the assessors may correct it bv reducing it to its true market value, and if it be claimed that real property has been assessed at a higher proportionate valuation than other property in the vicinity, upon the same roll the assessors may likewise reduce it without necessitating any application to the court. Where, however, the assessing officers have without right increased the assessed valuation it is not a case for correction. The tax is. not deemed erroneous, but, to the extent of the increase, it is absolutely illegal and void, and the court may cancel the illegal excess in a certiorari proceeding. (Revised Greater N. Y. Charter, § 906 ; People ex rel. Powder Co. v. Feitner, 41 App. Div. 544 ; People ex rel. N. Y. & H. R. R. Co. v. Tax Board, 55 id. 544, 546.)

The remaining question is whether the act of the board of taxes and • assessments in increasing the assessed valuation was illegal. Notice and an opportunity to be heard are essential to the validity of any tax or assessment (Stuart v. Palmer, 74 N. Y. 188 ; People ex rel. Scott v. Pitt, 169 id. 521), and like notice and a hearing are essential to the validity of any increase thereof. (People ex rel. Chamberlain v. Forrest, 96 N. Y. 544.) The only authority for increasing assessed valuations in the. city of New York is contained in section . 896 of the revised Greater New York charter, which provides that the board of taxes and assessments may increase at any time before the first of April in each year * . * * the assessed valuation of any real or personal estate of any individual or corporation as in its judgment may be just or necessary for the equalization of .taxation, but it shall not increase such valuations, of the property of any individual or corporation after said books are opened for correction and review, except upon notice given to the individual or corporation affected by such increase, at least ten days before the fifteenth day of April in each year.”

These provisions gave the board no authority to increase the assessed valuations after the annual record was open for correction and review without notice to the petitioner. Moreover, the board has no authority to increase the assessed valuations, after the- thirty-first day of March, when the hooks are closed, although the statute evidently contemplates that the hearing on an increase may be had later, but with the true construction or validity of the statute in regard to a subsequent hearing we are not now concerned.

.It follows that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  