
    The People of the State of New York ex rel. Moses Chambers, Respondent, v. James L. Wells and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    First Department',
    December 30, 1905.
    Tax Lawcertiorari does not lie to recover erroneous assessment when no application to correct was made while books were open — proper procedure under section 897 of the charter of the city,of New York stated,.
    Certiorari does not lie to -recover,an assessment not alleged to be void, but merely erroneous as to amount, wh^n the relator has not made application to the tax commissioner for a correction thereof during the period the books were open for that purpose. Illness or absence'is no excuse.
    Such relator cannot avail himself of the provisions of section 897 of the charter of the city of Nejsv York, as amended by Laws of Í902,' chapter 192, which allows the majority of the board of taxes and assessments to Correct erroneous ■assessments when the person aggrieved was ill or absent during the time allowed by law for correction of assessments.
    
      ■It seems, that to obtain the benefit of said section, the proper remedy is mandamus, to compel the hoard .to act on the assessment, and, if the decision be erroneous,- to review the same on certiorari.
    Appeal by the defendants, James L. Wells and others, as commis-siónérs of taxes and.assessments of the city of Me\y York, from an order of the Supreme Court, made at.the Mew York Special Term- and entered in the office of the clerk of the county of Méw York on the 8th day of September, 1905, directing a reassessment of the relator’s personal property for the year. 1903.
    
      E. Crosby Kindleberger, for the appellants.
    
      Bernard Chambers, for the respondent.
   Clarke, J.:

■ The petition sets forth that on or about the 1st day of February, 1903, an assessment was made by the commissioners, of taxes and assessments for the purpose of taxation, amounting to $200, upon the personal property of petitioner, to.wit, $10,000 ; that the said assessment is erroneous by reason of overvaluation, the actual vain-' ation of the personal property belonging to him not exceeding $500 ; that the petitioner was absent from the city of Mew York on business during the months of February, March and April, 1903, and could not, therefore, apply personally for the correction of the erroneous assessment at that time; that in or about the month of May, 1903, the petitioner, as soon as he returned to the city of Mew York, made application to the said assessors for the correction of said assessment, but that said assessors have refused to make such correction; wherefore lie prayed that a writ of certiorari issue. The writ having issued, the assessors made return, among other things, that “ the Deputy Tax Commissioner assigned to that duty under our direction, between said times (the first Monday of September, 1902, and the second Monday of January, 1903) duly assessed the personal .property of the relator for the year 19Ó3 at the sum of $10,000 and duly entered such assessment in the Annual Record of the Borough of Manhattan. 'The said books were kept open in our office for examination and correction from the second Monday of January, 1903, until the. 1st day of April, 1903, and previous to and during the’ time said books were open for inspection the fact was duly advertised according- to law. During the time said books were open to public inspection, as above stated, the said relator did not submit to us, or file in our office any statement in writing, or appear before us to be examined. Thereafter we confirmed the assessment originally made by the Deputy Tax Commissioner upon the personal property of the relator in the sum of $10,000.” The said return further alleged: “ The relator did not file any statement* or appear before us during the time the books were open. We hereby deny that the relator filed any application before us for the remission or reduction of the said assessment during the month of May, 1903, or at any other time. We make this return without prejudice, reserving the right to move to quash said writ on fhe hearing of the proceeding on the ground that upon the facts stated in the petition the relator is not entitled to a writ of certiorari to review the assessment in question.” This return was verified December 9, 1903. The trial came on February 27, 19Q5, and the corporation counsel at the commencement of the proceedings moved to dismiss on the ground that the petition for the writ did not show sufficient grounds for the granting of a writ of certiorari. The court allowed an amendment to the petition to show that petitioner was absent from the city during the month of January, 1903, after the second Monday thereof. The relator gave ‘testimony tending to show that he was sick and absent from the'city from early in January until the latter part of April, 1903; that he found the tax notice and went to the office of ttié tax commissioners twice, but did not succeed in seeing a commissioner. Upon the third attempt he saw President Wells and “told him-the,case, that 1 was sick — laid up until now, and I find out I am assessed for $10,000 which I am , really not worth anything* and I asked him * * * that he should kindly correct this assessment and he told me that I am too late, but I told him the reason why I was late; * * * he said he had no power to do anything for me and I said, ‘ I have not got that amount óf money now;’ he said, ‘If you have not got it they can’t take it-from yon.’ I told him I would not like to have a judgment against . me.”

The learned court denied the motion to dismiss and fixed the value of personal property subject to taxation at $500 and granted costs and disbursements against the appellants, and from the order entered thereon the tax commissioners appeal.

The assessment was not void for want of- jurisdiction. The 'residence of relator was fully established, and necessarily found by the court as a basis for its own order. Section 895 of the charter (Laws of 1901, chap. 466) provides as follows: “ During the time that books shall be open to public inspection , * * * application may be- made by any person * * * claiming to be aggrieved by the assessed valuation of * * * personal estate, to have the same corrected, f * * If such application be made in relation to the assessed valuation of personal estate, the applicant shall be examined ■ under oath by a commissioner of taxes and assessments or a deputy tax commissioner, as herein provided, * ■* * and if tlie assessment as hereinafter provided be determined by the board of taxes and assessments to be -erroneous, it shall cause the same to be corrected and fix the amount of such assessment as the board of taxes and assessments may believe to be just, and declare its decision upon such application within the time and in the manner hereinafter provided.” ' ,

Section 906 of the charter provides that a certiorari to review or correct on the merits any final determination of the board of taxes and assessments shall be allowed by the Supreme Court or any justice thereof on the verified petition of the party’aggrieved.

Section 250 of the Tax Law (Laws of 1896, chap. 908) provides: “ Such petition must show that application has been made in due time to the proper officers to correct such assessment.”

It seems that certiorari will not. lie to correct an assessment complained of as_ erroneous, as distinguished from void, because made without jurisdiction of the person assessed, unless an application was made “in due time to the proper officers to correct such assessment.” “Wo excuse could take the place of the application, which is a condition of the court’s jurisdiction to‘correct’ assessments.” (Rumsey Taxn. 313, 314.) In People ex rel. Littman v. Wells (91 App. Div. 174) this court said that section 906 of the charter and section 250 of the Tax Law are to be read together, and that the petitioner was required to show that an application had been made for the correction of an assessment, and then added : “ This evidently relates to cases where the claim is that the assessment is erroneous. * * * 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 value 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 case at bar comes squarely within that principle, as eoncededly this is a proceeding to correct an erroneous assessment. The petition states that'“ the said assessment is erroneous by reason of overvaluation; * * * that the above-named commissioners of taxation erred in their increased assessment this year ; that the petitioner was absent * * * and could not, therefore, apply personally for the correction of the erroneous assessment at that time,” and asks that “ the decision and acts of said commissioners and their erroraforesaidmay.be reviewed upon the merits ■*- * * and a correction and reduction of said assessment be made according to law.”

The petitioner seeks to avail himself of the provisions of section 897 of the charter, as amended by chapter-192 of the Laws of 1902. It reads-: “ The board- of taxes and assessments.-is hereby invested with power to remit or reduce where in the opinion of the corporation counsel lawful"cause therefor is shown. It may remit or reduce if found excessive or erroneous a tax imposed upon real or personal property. It shall require a majority of the commissioners of taxes and assessments to remit or reduce the assessed valuation of personal property, and no tax on personal property shall be remitted, cancelled or reduced unless the person aggrieved shall satisfy the board of ■taxes and assessments that illness or absence from,the city had prevented the.filing ojS-the complaint or making the application to the said board within the time allowed by law for the correction of taxes.” This provision, however, may not be invoked in this proceeding. ' This, is a provision of grace.' The board may reduce “whére in the Opinion -of the .corporation .coimsel lawful cause .therefor is shown ;’” but it requires a majority of the commissioners-to reduce the" assessed valuation óf personal property, and a tax on personal property shall not be so reduced’ “- unless the person aggrieved shall sa'tisfy the board of taxes and assessments that illness or absence from the city had prevented the filing of the -complaint- or making the application to the said board within the time allowed by law.for the correction of taxes.” " •

But this is a certiorari to review or correct on the merits the final determination of the board, and. that determination was the assessment. ' The allegation of the petitioner is that during the month-of May he made application for the correction of said assessmen, but, that said assessors have refused to make such correction. His proof was that-on one occasion he saw President Wells, and that Wells ¿aid petitioner was too late, and that lie' had no power to do anything for him, If the statement of the president of the board be. taken -at its full value as a refusal of the board to act in the matter l at ail for alleged want of power, that does not aid the relator here, and is-not to be reviewed upon certiorari. The remedy has: been-clearly indicated by the Court of Appeals in People ex rel. New York Hotel & Restaurant Co. v. Barker (140 N. Y. 437) to have been an application to Special’Term for a writ of mandamus directed to the commissioners commanding them to entertain -and consider the application for the correction "of the assessment. . Qf course, man-damns will not lie to compel the board to act in a particular way upon such application, for there is, after they have acted, an adequate remedy at law to review the decision ; that is, by certiorari under the Tax Law. (People ex rel. Bliss v. Feitner 72 App. Div. 45.)

The order appealed from must be reversed and ■ the proceeding dismissed, with costs to the appellants.

O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Order reversed and proceedings dismissed, with costs to the appellants.  