
    The People ex rel. The Cord Meyer Company, Relator, v. Thomas L. Feitner et al., Commissioners of Taxes, Etc., Respondents.
    (Supreme Court, New York Special Term,
    December, 1902.)
    Tax — Certiorari to review — Reference, when ordered — Capital stock, how assessed — Valuation of realty not to be increased by the aggrieved party on review.
    The court will order a reference (L. 1890, ch. 608, § 253) to take testimony in a proceeding to review an assessment by certiorari only where the application for a reduction tenders a question of fact and contains a statement of fact which, if taken as true, would require a reduction or cancellation of the assessment.
    The taxable value of the capital stock of a corporation is to be ascertained by adding together the actual value of its realty and its personalty and deducting therefrom its debts and the assessed value of its realty.
    Where the first two items amounted to $506,847, the debts to $55,000, and the assessed value of the real estate of the corporation was given by it in a preliminary written statement to the tax commissioners as “ over $400,000 ”, the court approved an assessment of the capital stock at $51,800 — its actual, value not being stated nor whether it was worth less than par.
    Where a corporation has thus declared the assessed value of its real estate to be “ over $400,000 ” and has never claimed tó the tax commissioners any other value, its statement of value must be regarded as approximately true, and therefore no consideration should be given to a subsequent value of $460,000 first alleged in a petition for a certiorari to review the assessment.
    
      Proceeding by relator to obtain, a cancellation of the assessment of its capital stock.
    Sheehan & Collin (John L. Wells, of counsel), for relator.
    George L. Rives, Corporation Counsel (George S. Coleman and 'Curtis A. Peters, of counsel), for respondents.
   Scott, J.

The relator seeks by this proceeding to obtain a cancellation of the assessment of its capital stock. The assessment was first placed at $500,000, but upon an application to the commissioners it was reduced to $51,800. The relator being still dissatisfied brings this proceeding. The property of the relator consists of both real and personal property, and the rule for ascertaining the taxable value of the capital stock is well established and is conceded by the relator. That value is to be ascertained by adding together the actual value of its real estate and personal property and deducting therefrom the sum of its indebtedness and the assessed value of its real estate. People ex rel. Equitable Gas Light Co. v. Barker, 144 N. Y. 94. The question as to whether or not the commissioners have erred in mailing the assessment is to be determined primarily by the preliminary statement made to the commissioners to enable them to fix the assessment and by the facts set forth in the application for a reduction. The court sits, not in the place of the taxing officers, but in review of their action, and for this reason can act only upon the case as presented to the commissioners, and not upon some new claim, or new statement of facts contained in the petition for the writ of certiorari. It is to be presumed, and the law will presume that in the preliminary statement and in the application for reduction the relator stated the case as favorably for itself as an adherence to the' exact facts of the case will permit. It will also be presumed that when it makes its preliminary statement and application for reduction it actually.knows its own financial condition. Section 258 of the Tax Law (L. 1896, ch. 908), providing for taking evidence in certiorari proceedings, does not require that such evidence shall be taken in every proceeding, but only where the application for a reduction of the assessment tenders a question of fact, and contains a statement of fact, which, if taken as true, would require a reduction or cancellation of the assessment. If upon the admitted facts as shown by the preliminary statement and the application for reduction, it clearly appears that the assessment of the capital stock was not excessive, there is no occasion for taking evidence. In the preliminary statement the relator stated that its total gross assets, including real estate, were $506,847.01, and that of this total the real estate amounted to $500,000 and its personal property $6,847.01. It further stated that the real estate had been paid for in stock and that the actual value at which such real estate is carried on the books of the corporation as an asset was $500,000. It omitted to state the actual value of the capital stock, or whether it was worth less than par. In its application for a reduction of the assessment it made no reference to or claim respecting the actual value of its real estate. The commissioners were, therefore, clearly justified, in considering the application for a reduction of the assessment, to take the real estate as of the actual value of $500,000, and there is nothing in either the preliminary statement or the application for reduction to suggest any question as to this valuation, or to call for the taking of evidence relating thereto. Mo question is made as to the value of the personal property. In stating the assessed value of its real estate the relator was singularly disingenuous. The blank furnished by the respondents upon which the preliminary statement was made asked for the assessed value of the real estate and requested that it be described by ward and ward map numbers. The statement made in response to this question was, “ Mot all the real estate of the company is located in Mew York city. It has several hundred parcels in various boroughs which have been assessed at over $400,000.” In its application for a reduction of the assessment it made no reference to, or claim respecting, the assessed value of its real estate, and by refusing to give any particulars as to the location of its real estate the commissioners were precluded from ascertaining for themselves what the assessed valuation actually was. Any excess over $400,000, even one dollar, would have satisfied the statement that the assessed valuation was over $400,000. Assuming, as they had a right to assume, that the relator knew its own affairs and made as favorable a statement for itself as the truth would warrant, the commissioners were fully justified in taking the assessed value of the real estate to be but an inconsiderable sum above $400,000. There is certainly nothing in the preliminary statement or in the application for reduction to suggest any question as to the assessed valuation of the real estate, or to call for the taking of evidence relating thereto. In the petition for the writ of certiorari the relator seems to be still in some doubt as to what it should claim the Assessed value of its real estate to be, but, as if to meet and overcome the present assessment, it states the assessed value to be over $460,000, which, as.it alleges, exceeds the real value. These expanded claims are raised for the first time by the petition, and not having been incorporated into either the preliminary statement or the application for reduction, and never having been laid before the commissioners, cannot now be considered or made the basis for a reduction of the assessment in this proceeding. The commissioners had a right to rely upon the statements made, and if they were incorrect the relator is without redress. People ex rel. German Looking Glass Co. v. Barker, 75 Hun, 6. Taking the statement presented by the relator to the commissioners it appears that the total gross assets included real estate valued at $500,000 and personal property at $6,847.01, making total gross 'assets of $506,847.01. Its indebtedness was $55,000, and the assessed value of its real estate “ over $400,000.” If that assessed value were exactly $400,000 the total deduction to be made from the gross assets would be $455,000. The taxable value of the capital stock in that case would be $51,847. It was assessed by the commissioners at $51,800, so that they apparently considered that the assessed value of the real estate might have been “ over $400,000- ” by the sum of $47, a sum quite consistent with the statement made by the relator. It appears, therefore, that the commissioners, in finally fixing the assessment of the relator’s capital stock, accepted and acted upon the relator’s own statements. There is, therefore, nothing upon which to take evidence, and nothing to impeach the accuracy of the assessment.

The writ must, therefore, be dismissed, with costs.

.Writ dismissed, with costs.  