
    In the Matter of State Board of Equalization and Assessment, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 1.) In the Matter of the State Board of Equalization and Assessment, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. In the Matter of Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Appellants, v State Board of Equalization and Assessment, Respondent. (Proceeding No. 2.) State Board of Equalization and Assessment et al., Appellants, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 3.)
    Argued February 11, 1981;
    decided April 30, 1981
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Franklin K. Breselor of counsel), for appellants in the first and third above-entitled proceedings.
    I. The State Board of Equalization and Assessment properly proceeded under article 2 of the Real Property Tax Law, not article 7, since it was not reviewing individual assessments, but was reviewing a general practice of the local assessors in determining taxable status. Further, the respondents were afforded due process of law. (C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Sonmax, Inc. v City of New York, 43 NY2d 253; Alford v United States, 282 US 687; Matter of Epstein v Cort Watch Co., 7 AD2d 663; Hannah v Larche, 363 US 420; Matter of Shermack v Board of Regents of Univ. of State of N. Y., 64 AD2d 798.) II. Proceeding No. 1 brought pursuant to section 202 of the Real Property Tax Law was improperly dismissed. SBEA’s authority under this section is separate and independent from its powers under section 216 (exercised in Proceeding Nos. 2 and 3). (Matter of Bolden v Blum, 68 AD2d 600, 48 NY2d 946, 49 NY2d 801; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Carr v Hoy, 2 NY2d 185.) III. Special Term’s summary disposition in Proceeding No. 3 neither deprived respondents of any notice required by law nor resulted in any surprise or prejudice to them as a matter of fact. (O’Hara v Del Bello, 47 NY2d 363; Maybrown v Malverne Distrs., 57 AD2d 548; Mareno v Kibbe, 32 AD2d 285; Matter of Lefkowitz v McMillen, 57 AD2d 979.)
    
      Stephen L. Oppenheim for respondents in the first above-entitled proceeding.
    I. Applicant is limited to enforcement procedures contained in subdivision 2 of section 216 of the Real Property Tax Law. (Matter of State Bd. of Equalization & Assessment v Kerwick, 91 Misc 2d 152; Matter of Morris v Hayduk, 45 NY2d 793; Matter of Higby v Mahoney, 48 NY2d 15; Van Deventer v Long Is. City, 139 NY 133; People ex rel. Marsh v Delaney, 49 NY 655; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Matter of Allen Sq. Co. v Krieger, 217 App Div 123; People ex rel. Onderdonk v Supervisors of Queens County, 1 Hill 195.) II. Appellant’s memorandum of April II, 1977 was not binding on respondents, being advisory only. (People v Cull, 10 NY2d 123; Matter of Sturman v Ingraham, 52 AD2d 882; Wirtz v Lobello, 1 AD2d 416; Dubendorf v New York State Educ. Dept., 97 Misc 2d 382, 71 AD2d 837; Percy v Brennan, 384 F Supp 800; Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Howard v Wyman, 28 NY2d 434; Matter of Albano v Kirby, 36 NY2d 526; Matter of Hirschfeld v Feuer, 35 NY2d 176; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137.) III. The SBEA’s present, all-encompassing denial of exemptions to Universal Life Church churches is invalid. (Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Sturman v Ingraham, 52 AD2d 882; Matter of Barry v O’Connell, 303 NY 46.) IV. Appellant improperly decided church status without a hearing on the merits. (United States v Kuch, 288 F Supp 439; Fowler v Rhode Island, 345 US 67; United States v Ballard, 322 US 78; United States v Seeger, 380 US 163; Theriault v Carlson, 495 F2d 390; Hundley v Sielaff, 407 F Supp 543; Theriault v Silber, 391 F Supp 578; Remmers v Brewer, 361 F Supp 537, 494 F2d 1277, 529 F2d 656.) V. The SBEA’s memorandum is incorrect in concluding that “no fact situation has been presented” which would warrant granting exemptions to Universal Life Church churches. (Gillette v United States, 401 US 437; Epperson v Arkansas, 393 US 97; Abington School Dist. v Schempp, 374 US 203; Fowler v Rhode Island, 345 US 67; Zorach v Clauson, 343 US 306; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Order Minor Conventuals v Lee, 64 AD2d 277; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of New York Conference Assn. of Seventh-Day Adventists v Schenck, 279 App Div 845, 304 NY 706; Matter of Mary Immaculate School of Eagle Park [Board of Assessors, Town of Ossining], 188 App Div 5.) VI. Since Kerwick had complied with appellant’s subpoena, his failure to comply and appellant’s alleged ignorance cannot be grounds for relief. (People ex rel. Haile v Brundage, 195 App Div 745; Matter of Bertholf v Cisco, 72 Misc 2d 901.) VII. Appellant’s allegations of a conspiracy do not allow it to maintain this proceeding. (Sharkey v Thurston, 268 NY 123; Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944, 273 App Div 1054, 298 NY 707; Cooke v Dodge, 164 Misc 78, 254 App Div 808.) VIII. The exempt property owners are now necessary parties to this proceeding. (Overing v Foote, 65 NY 263; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Vergari v Ward, 88 Misc 2d 911; Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of Skliar v Board of Educ., 45 AD2d 1012; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222.) IX. The proceeding is moot. X. The court can no longer grant effective relief herein.
    
      Stephen L. Oppenheim for Robert Kerwick and others, appellants in the second above-entitled proceeding.
    I. The State Board of Equalization and Assessment did not follow the procedures mandated by the Legislature in section 216 of the Real Property Tax Law. II. The assessors have the right to be heard in the courts on the sufficiency of the hearing afforded them. (Matter of State Bd. of Equalization & Assessment v Kerwick, 72 AD2d 292; Wisconsin v Constantineau, 400 US 433; Board of Regents v Roth, 408 US 564; Perry v Sindermann, 408 US 593; Matter of New 
      
      York Edison Co. v Maltbie, 271 NY 103; Matter of Reeves v Golar, 45 AD2d 163; Matter of Munter v Gross, 42 Misc 2d 690 ; Matter of Schutt v Macduff, 205 Misc 43; Matter of Legislature of County of Rockland v New York State Public Serv. Comm., 49 AD2d 484; Matter of Leroy Fantasies v Swidler, 44 AD2d 266.) III. The assessors are entitled to a fair hearing under due process standards. (Matter of Greenbaum v Bingham, 201 NY 343; Matter of Hecht v Monaghan, 307 NY 461; People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156; Matter of Roge v Valentine, 280 NY 268; People ex rel. Consolidated Water Co. of Utica v Maltbie, 275 NY 357; Matter of Ryan v New York State Liq. Auth., 273 App Div 576; Matter of Merritt v Swope, 267 App Div 519; Fostner v Morawitz, 215 App Div 176; Matter of Townley v Bruckman, 168 Misc 422; Matter of Papasidero v Fasano, 19 NY2d 440.) IV. The assessors did not have notice of any proceedings against them. (Goldberg v Kelly, 397 US 254; Matter of Murray v Murphy, 24 NY2d 150; Matter of Hecht v Monaghan, 307 NY 401; Matter of Hilton Hotels Corp. v Epstein, 14 AD2d 399, 11 NY2d 978; Merritt v Swope, 267 App Div 519; Matter of Kern v La Guardia, 264 App Div 627, 289 NY 776; Matter of Bender v Board of Regents of Univ. of State of N. Y., 262 App Div 627; Matter of Silverstein v Mealey, 259 App Div 854; Matter of Ahsaf v Nyquist, 37 NY2d 182.) V. The assessors were denied the opportunity to be heard. (Grannis v Ordean, 234 US 385; Stuart v Palmer, 74 NY 183; Matter of Pannell v Jones, 36 NY2d 339; Helfrick v Dahlstrom Metallic Door Co., 256 NY 199, affd sub nom. Dahlstrom Metallic Door Co. v Industrial Bd. of N. Y., 284 US 594; Matter of Bender v Board of Regents of Univ. of State of N. Y., 262 App Div 627; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Hauch v McGoldrick, 200 Misc 628; Matter of Socony Vacuum Oil Co. v Murdock, 165 Misc 713; Matter of Simpson v Wolansky, 38 NY2d 391.) VI. The assessors’ right to confront the witnesses against them was denied. (Goldberg v Kelly, 397 US 254; Matter of Greenbaum v Bingham, 201 NY 343; Matter of Wignall v Fletcher, 278 App Div 28, 303 NY 435; Matter of Merritt v Swope, 267 App Div 519; Matter of Lipschitz v Mealey, 
      259 App Div 640; Matter of Hecht v Monaghan, 307 NY 401; Matter of Switsky v Herman, 10 AD2d 959; Matter of Williams v Du Mond, 282 App Div 76; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Neshaminy, Inc. v Hastings, 64 AD2d 830.) VII. The assessors’ right to cross-examine the witnesses was denied. (Goldberg v Kelly, 397 US 254; Matter of Hecht v Monaghan, 307 NY 401; Matter of Greenbaum v Bingham, 201 NY 343; Matter of Wignall v Fletcher, 278 App Div 28, 303 NY 435; Matter of Lipschitz v Mealey, 259 App Div 640; Matter of Williams v Du Mond. 282 App Div 76; Matter of Heaney v McGoldrick, 286 NY 38; Matter of New York Water Serv. Corp. v Water Power & Control Comm. of State of N. Y., 283 NY 23; Matter of 245 Elmwood Ave. v New York State Liq. Auth., 14 AD2d 393, 11 NY2d 980; Matter of Epstein v Cort Watch Co., 7 AD2d 663.) VIII. The SBEA’s general counsel had no authority to conduct hearings and report under subdivision 2 of section 216 of the Real Property Tax Law. (Matter of Munter v Gross, 42 Misc 2d 690; Morgan v United States, 298 US 468.) IX. The SBEA improperly found the assessors guilty in the alternative and the findings are inadequate. (Matter of Simpson v Wolansky, 38 NY2d 391.)
    
      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Franklin K. Breselor of counsel), for State Board of Equalization and Assessment, respondent in the second above-entitled proceeding.
    I. The administrative proceedings were conducted in full observance of the statutory authority for them and of petitioners’ rights. II. Neither the taxpayers who received Universal Life Church exemptions nor Kerwick on their behalf have carried the burden of proving their entitlement thereto. (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Matter of Presbyterian Residence Center Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Di Marsico v Ambach, 48 NY2d 576; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)
    
      Stephen L. Oppenheim for respondents in the third above-entitled action.
    I. Special Term improperly and unconstitutionally granted judgment. (O’Hara v Del Bello, 47 NY2d 363; Maybrown v Malveme Distrs., 57 AD2d 548; Matter of Lefkowitz v McMillen, 57 AD2d 979; Mareno v Kibbe, 32 AD2d 285; Lustig v Congregtion B’nai Israel of Midwood, 62 Misc 2d 216; Kreshik v St. Nicholas Cathedral, 363 US 190; N. A. A. C. P. v Alabama, 357 US 449; Harte v Adelphi Univ., 63 Misc 2d 228; Hallock v State of New York, 39 AD2d 172, 32 NY2d 599; Data-Guide v Dennis, 15 Misc 2d 679.) II. The town official respondents had jurisdiction to exempt and therefore their decisions may not be attacked collaterally. (Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 163 Misc 192; National Bank of Chemung, of Elmira v City of Elmira, 53 NY 49; Whitney v Thomas, 23 NY 281; Van Voorhis v County of Monroe, 288 NY 138; Autokefalos Orthodox Spiritual Church of St. George v City of Mount Vernon, 282 App Div 725; Van Deventer v Long Is. City, 139 NY 133; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451.) III. The first three causes of action are properly treated as an article 78 or other statutory review proceedings. (Board of Educ. v Allen, 25 AD2d 659; Lane v Nyquist, 59 AD2d 755; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Przyborowski v O’Connell, 272 App Div 1096, 297 NY 940; Colson v Wilson, 205 Misc 32; Hearst Corp. v New York, 204 Misc 584; Matter of State Bd. of Equalization & Assessment v Berwick, 72 AD2d 292; Frank v Levitt, 47 NY2d 853; Henry v Metropolitan Dade County, 329 F Supp 780; Klotz v Consolidated Edison Co. of N. Y., 386 F Supp 577.) IV. Treated as an article 78 proceeding or an action for declaratory judgment this action is barred by the Statute of Limitations. (Press v Monroe County, 50 NY2d 695; Solnick v Whelan, 49 NY2d 224; Frank v Levitt, 47 NY2d 853; Matter of Dells, Inc. v Ossman, 15 Misc 2d 237; Rose v Elliott, 218 App Div 287; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Campbell v Nassau County, 273 App Div 785; Timmerman v Board of Educ., 272 App Div 1075.) V. Service on the individually named defendants was constitutionally and statutorily invalid. (Dobkin v Chapman, 21 NY2d 490; Board of Educ. v Zeluck, 60 Misc 2d 1090; Mullane v Central Hanover Trust Co., 339 US 306.) VI. The anonymously named defendants are not before the court. (Mullane v Central Hanover Trust., 339 US 306; Schroeder v City of New York, 371 US 208.) VII. The court does not have personal jurisdiction over necessary parties defendant, either in regard to the action or to appellants’ motion. (Stuart v Palmer, 74 NY 183; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Utica Sheet Metal Corp. v County of Tompkins, 40 AD2d 567; Russell v City of New York, 22 AD2d 706, 16 NY2d 641; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550.) VIII. Neither the SBEA nor the State, acting as sovereign, has standing to bring this action. IX. The fourth cause of action was properly dismissed. (Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Sanchez v Village of Liberty, 42 NY2d 876; Bernkrant v State of New York, 26 AD2d 964; Erving v Mayor, Aldermen & Commonality of City of N. Y., 131 NY 133; People ex rel. Coughlin v Gleason, 121 NY 631; Instalment Dept. v State of New York, 21 AD2d 211; Harrington v Norco Fruit Distrs., 70 Misc 2d 471; East Riv. Gas-Light Co. v Donnelly, 93 NY 557; People v Thompson, 58 Misc 2d 511.) X. Appellants concede that in this proceeding respondent officials are entitled to test whether due process has been afforded them. (Goldberg v Kelly, 397 US 254; Armstrong v Manzo, 380 US 545; Grannis v Ordean, 234 US 385; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Pannell v Jones, 36 NY2d 339; Matter of Hecht v Monaghan, 307 NY 401; People ex rel. Consolidated Water Co. of Utica v Maltbie, 275 NY 357; People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156; Matter of Greenbaum v Bingham, 201 NY 343.)
   OPINION OF THE COURT

Wachtler, J.

On these three appeals, which are considered together because of their common factual and legal background, we are once again, concerned with controversies arising out of the granting by the respondent tax assessor of exemptions from real property taxation to members of the Universal Life Church. In the main, all three appeals involve efforts by the State Board of Equalization and Assessment (SBEA) to prevent these exemptions. The central issue for our determination in whether the SBEA has authority to engage in that effort. The Appellate Division held it does not. We agree.

I

In April of 1977, the SBEA formally exhibited its concern with the proliferation of religious tax exemptions to members of the Universal Life Church by issuing a 28-page memorandum designed to “assist” local assessors in their determinations regarding exemptions. The succinct conclusion of this document, in addition to its statement that “it must be emphasized that the taxable status of each parcel * * * is dependent upon the facts developed for each parcel and the owner thereof”, is that “[n]o fact situation has been presented * * * which * * * would entitle real property owned by a ULC [Universal Life Church] member to either a total * * * or a partial exemption”. Nonetheless, the memorandum was ineffective to. stem the tide of exemptions, and, in response, the SBEA commenced the first entitled proceeding. The petition sought: a declaration that the 1977 tentative assessment roll is void; to enjoin certain named respondents from taking any action to establish the tentative assessment roll as the final assessment roll for 1977; and directing respondent Kerwick to restore to the taxable portion of the tentative assessment roll all real property granted exemptions in an arbitrary, capricious or unlawful manner.

The statutory authority upon which SBEA relied for initiation of this proceeding is found in section 202 of the Real Property Tax Law, which in pertinent part states:

“Powers and duties of state board

“1. The board shall: * * *

“(g) Furnish assessors with such information and instructions as may be necessary or proper to aid them in making assessments, which instructions shall be followed and compliance with which may be enforced by the board”.

SBEA vigorously contends that this is a self-executing mandate to compel adherence to SBEA instructions through immediate judicial proceedings, without there being any necessity to comply with the preliminaries for such review as set forth in subdivision 2 of section 216 of the Real Property Tax Law. That statute, however, appears to contemplate otherwise in its statement that: “[Wjhenever it appears to the satisfaction of the board that any assessor or other public officer or employee whose duties relate to assessments has failed to comply with the provisions of this chapter or any other law relating to such duties, or the rules and regulations of the board made pursuant thereto, after a hearing on the facts, the board may issue its order directing such assessor, officer or employee to comply with such law, rule or regulation, and if such assessor, officer or employee shall neglect or refuse to comply therewith within the period of ten days after service on him of such order, the board may apply to a justice of the supreme court for a summary order to compel him to comply with such law* rule or regulation, and the justice shall have power to issue such order” (Real Property Tax Law, § 216, subd 2; emphasis added).

We are not convinced by the argument of SBEA that section 202 authorizes prompt judicial review without these procedural safeguards, merely because prompt judicial attention in some instances might serve to dispose of the matter prior to the finalization of the assessment roll. Of course, expediting the contemplated proceedings would serve a salutory purpose, but it is for the Legislature to make this summary method available. This the Legislature has not done, and, without such a stated limitation, section 202 would provide a serious loophole for wholesale avoidance of the obvious concerns reflected in section 216. We reject, therefore, SBEA’s broad interpretation of section 202 and hold, in agreement with the Appellate Division, that in view of SBEA’s conceded failure to comply with section 216, the petition was properly dismissed.

II

After the decision at Special Term in the proceeding discussed above, SBEA began procedures designed to comply with section 216. Subpoenas were issued, and eventually the respondent assessors from the Towns of Hardenburgh, Liberty, Rochester, and New Paltz, appeared before the SBEA for a hearing. After having heard the testimony, the hearing officer concluded that exemptions to Universal Life Church members had been improperly granted, and found that the affected real property should be restored to the nonexempt portion of the assessment rolls. The SBEA agreed and issued orders directing each town assessor to petition the town board of assessment review to remove the affected properties from the exempt portions of the roll. When the assessors failed to comply within 10 days (see Real Property Tax Law, § 216, subd 2), SBEA instituted a CPLR article 78 proceeding to enforce compliance. The petition was granted to the extent of ordering that the parcels be placed on the assessment rolls as omitted properties (see Real Property Tax Law, § 551).

During the pendency of the proceeding, the assessors commenced an article 78 proceeding of their own, seeking to challenge the SBEA hearing and orders on various grounds. SBEA moved to dismiss this proceeding and the motion was granted.

The respondent assessors appeal both of the above orders to the Appellate Division, which considered the matters together. The Appellate Division reversed both orders due to irregularities which it found in the hearing process, and because the court concluded that the respective directives of the SBEA to the assessors were beyond that agency’s jurisdiction.

It is clear that from the outset of the administrative procedures, the SBEA objective was to influence substantive determinations of the assessors regarding exemptions. At the threshold, then, is to determine whether the SBEA had the power to involve itself in this process. Because we agree with the Appellate Division that SBEA did not have this power, we do not reach issues concerning alleged defects in the administrative hearing process. Because the issue concerning the jurisdiction and power of the SBEA also is raised in the third entitled appeal, we defer our discussion to that portion of this opinion.

Ill

The third proceeding was commenced by the SBEA and the State which is suing in its capacity as an affected local landowner. This third attempt by SBEA to obtain compliance with its view as to the Universal Life Church exemptions was initiated in response to the respondent assessors’ action subsequent to the previously discussed orders of Special Term (see heading II, supra). In what SBEA characterizes as an attempt to circumvent those orders, the assessors held grievance procedures for those taxpayers who were threatened with the loss of their exemptions. These procedures culminated in uniform determinations by the assessors that the properties should remain exempt. Thus, although the properties were temporarily rendered nonexempt, they were ultimately placed on the exempt portion of the 1978 assessment rolls. At Special Term, the court concluded that this had been done with arbitrary and capricious disregard for the law. However, the Appellate Division reversed, and while other issues were considered, it concluded that due to limitations on the powers of the SBEA the agency had no authority to enforce compliance with its views regarding the exemptions. Accordingly the petition was dismissed.

The Appellate Division also dismissed the suit brought by the State as a landowner based in part on its conclusion that the State was relegated to the exclusive remedy of an article 7 proceeding (see Real Property Tax Law, art 7). While we disagree with this argument that article 7 was the State’s exclusive remedy (see Matter of Dudley v Kerwick, 52 NY2d 542, [decided herewith]), we conclude nonetheless that reversal of the order of Special Term was appropriate for the additional reason relied on by the Appellate Division, that Special Term erroneously converted a motion to dismiss into one for summary judgment, without proper notice to the parties of its intent to do so (see CPLR 3211, subd [c]).

On the issue of the jurisdiction of the SBEA to initiate the proceeding under review, though we agree with the court below, the significance of this holding requires that we engage in some discussion of that agency’s history and purpose.

In the history of our State there have been other bodies known as the Board of Equalization and Assessment (Kilmer, Introduction to the Real Property Tax Law [1960]), but the present SBEA began its existence in the form of a temporary commission created in 1949 (L 1949, ch 346). The impetus for its creation was a legislative concern that the then existing equalization rates had gradually been rendered inaccurate by increases in property values during economic inflation during the aftermath of World War II (Kilmer, Introduction to the Real Property Tax Law; see, also, L 1949, ch 346, § 1 [legislative determinations]; Matter of Town of Smithtown v Moore, 11 NY2d 238, 241; Guth Realty v Gingold, 34 NY2d 440, 448). The temporary commission, known as the State Board of Equalization and Assessment, faced the immediate task of revising the old State equalization rates, and offering recommendations on the continuation of this essential function in the future (L 1949, ch 346, §§ 3, 12). It is significant, we think, that the broad devolution of powers and duties on the new commission, though not purporting to be exclusive, contained no authorization for substantive input, much less control, by the SBEA in the individualized local assessment process (L 1949, ch 346, § 3).

The temporary commission was continued under express statutory enactment until April 1, 1960 when the board was reconstituted as a permanent State agency (L 1960, ch 335; Real Property Tax Law, §§ 200-216; see Matter of Town of Smithtown v Moore, swpra). However, it is clear that at this time the essential function of the agency was not to change; it remained authorized to advise on assessment matters, keep current equalization rates, and perform certain other functions with which we are not now concerned (see Governor’s Memorandum, NY Legis Ann, 1960, p 482; also reprinted at McKinney’s Session Laws of NY, 1960, p 2007).

The current wording of section 202 of the Real Property Tax Law, which concerns the power of the SBEA, is apparently to the same effect as the legislative history. The SBEA is possessed of “general supervision of the function of assessing”, and may “[f]urnish assessors with such information and instructions as may be necessary or proper to aid them in making assessments, which instructions shall be followed and compliance with which may be enforced by the board” (Real Property Tax Law, § 202, subd 1, pars [e], [g]; emphasis added). Thus the statute grants authority “to aid” in the assessments; conspicuously absent is an authorization to direct substantive assessment decisions. Were we to adopt SBEA’s broad interpretation of its powers, that they may enforce their conclusion on any assessor that a specific exemption or group of exemptions are erroneous under the law, and therefore illegal (cf. Real Property Tax Law, § 216, subd 2), there would be no logical end to the process. In a sense, every erroneous assessment involves some illegality (City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960, 962), but the illegality which the SBEA is empowered to prevent is only that falling in the ambit of its procedural functions.

Practical problems also ensue if we establish the jurisdiction and authority which the SBEA seeks. It is conceded by the SBEA that the assessor’s determination with regard to exemptions is an individualized process, and yet it argues that it seeks to hold the assessors accountable for broad patterns of exemptions. It is difficult to see how this board instruction against Universal Life Church exemptions could be translated into concrete enforcement. It is in this very proceeding that the assessors allegedly circumvented the broad instruction by a multitude of “individual” redeterminations on grievance day. Although this too is characterized by the SBEA as an illegal action, it would seem wrong to suggest that the exemptions would still be voidable by a single blow administered by the SBEA. Certainly, to allow such a binding determination without providing an opportunity for each affected landowner to be heard would violate due process (see Matter of Dudley v Kerwick, 52 NY2d 542, supra [decided herewith]).

All of this makes apparent the fact that the SBEA is seeking to go beyond its intended scope of procedural regulation. In determining the authority claimed by the SBEA was legislatively intended we must also consider the active participation by that agency in this complex and expensive litigation. SBEA can point to no specific legislative authorization to undertake it. We cannot, therefore, reasonably conclude that this activity was intended to be within the SBEA’s authority for “general supervision of the function of assessing” (Real Property Tax Law, § 202, subd 1, par [e]).

Finally we note that nothing we have said should reflect adversely on the propriety of the preparation and distribution of the instructional memorandum dealing with religious property exemptions. The availability of such information is undoubtedly valuable in this problematical area. The enforcement of the views it contains, however, is an entirely different matter.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur; Chief Judge Cooke taking no part.

In each case: Order affirmed, with costs. 
      
       The constitutional arguments which petitioners made in this proceeding were dismissed on the merits as unsupported on the record. Other arguments were deemed precluded by the determination in the related SBEA instituted proceeding.
     