
    The People of the State of New York ex rel. Edward H. Litchfield and Others, Respondents, v. Thomas L. Feitner and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Reduction of assessment for inequality—what must he shown to authorize it—proof as to inequality in properly of the same class is sufficient.
    
    Where the owner of a parcel of unimproved real estate in the city of New York ■makes application to obtain a reduction of the assessment of such real estate for the purpose of taxation on the ground of inequality, it is incumbent upon him to show that the assessment in question is unequal as compared with valuations generally on the same roll.
    If, upon a comparison of the assessment in question with the assessment of a sufficient number of parcels of real estate of the same class upon the same roll, it appears that the assessors have applied to the assessment of the relator’s property a different rule from that applied generally to property of the same class, a prima facie case of inequality is established, and it is then incumbent upon the assessors to establish that the relator has not been injured by the inequality.
    Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New.York, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Kings on the 21st day of January, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the reduction of the assessment on the relators’ property for the year 1899, and also from an order (so called) entered in said clerk’s, office on the 20th day of January, 1903, upon which said judgment was entered.
    
      George S. Coleman (John J. Delany with Mm oh the brief], for the appellants.
    
      William O. De Witt, for the respondents.
   Miller, J.:

The relators seek in this proceeding to obtain a reduction of their assessment made, in 1899 on the ground of inequality. It appeared that there was a marked increase in the assessment of the relators’ property over the assessment of the prior year, and that the ratio of increase in such assessment was greatly in excess of the ratio of increase in the assessment of the entire property of the ward.

Comparison was made with a large number of parcels of similar character so selected as to be fairly illustrative of the assessment generally on that class of property, from which it appeared that the assessment of the relators’ property was on an average twenty-six per cent higher than that of other property of like character on the tax rolls, and the referee has so found. No evidence was offered on the part of the appellants, but the point is now made that the evidence disclosed that the assessors had assessed improved property on the basis of seventy per cent of its value, and unimproved property, to which class the relators’ belonged, on the basis of fifty per cent of its value, and that the average assessment of the two combined was higher than that placed on the relators’ property, from which it is argued that the relators are not aggrieved and that they have not shown that they have been injtired or compelled tó pay more than their due share of the aggregate tax. In effect, the claim is that the assessors have violated their oaths and committed perjury in respect to the assessment on both classes of property, and that, although they have dealt unfairly with the relators’ as compared with property of the same class, they have dealt so much more unfairly with the owners of improved property that on the average the relators have not been harmed. It is undoubtedly the rule that. in order to succeed in this proceeding it was incumbent upon the relators to show that their own assessment was unequal as compared with valuations generally on the sanie roll (People ex rel. Warren v. Carter, 109 N. Y. 576; People ex rel. Eckerson v. Christie, 115 id. 158; People ex rel. Allen v. Badgley, 138 id. 314), but in order to show that it was obviously necessary to compare with property of the same class, and if comparison was made with a sufficient number of parcels to show that the assessors have applied a different rule to the assessment of the relators’ property from that applied generally to property of the same class, a prima faoie case of inequality of assessment was established, and it was then incumbent upon the appellants to establish that the relators have not been injured before they can be heard to raise the question. The finding of the referee, that the relators’ property has been assessed at an average of at least twenty-six per cent higher than the other property of like character on the tax rolls of the borough of Brooklyn and on all the tax rolls of the city of New York is justified by the evidence, and is ample to support the judgment appealed from. Ho claim is made on this appeal that it was necessary to compare the valuations placed on the relators’ property with that placed on property other than such as was located in the same ward, and the appellants limit their contention to the point stated.

There is no finding to the effect that the rule adopted by the assessors generally was to assess improved property at seventy per cent of its real value and unimproved property at fifty per cent, and the claim that the uncontradicted evidence establishes that such was the rule is based on the statements of William B. Litchfield, general agent for the relators, and one other witness. William B. Litchfield testified: “Well, it was testified there by two ex-presidents of the Board of Assessors that the valuation of seventy per cent was used in the improved property and fifty per cent in the unimproved property.” The other witness testified in answér to a question in respect to the rule of assessing improved property, as follows : “ I think the intention of the assessors w'as to get about seventy-five per cent of the actual value. * * * I have talked to some of them and I have heard them state that; some of them said they were bound on oath to.” We think this evidence is hardly sufficient to convict the assessors of the crime of perjury, and it is evident from the opinion of the learned referee that he thought it fell far short of establishing the fact relied upon by the appellants. Of course, the assessors are not required to assess property at the highest price for which it can be sold under the most favorable circumstances, and in valuing property for purposes of' taxation it is entirely proper for them to take into account the situation of the property and all of the attending circumstances, whether it is improved or unimproved, productive or unproductive, but, of course, having determined the real value of unimproved property, it is their duty to assess accordingly, and if it appeared in this case that they arbitrarily assessed improved property at seventy per cent, and unimproved property at fifty per cent of the real value so determined, and that the general average left the relators uninjured, a different question would be presented, but the evidence does not establish this; and the appellants are, therefore, in the position of urging a proposition which, so far as the evidence and the findings are concerned, is not involved in the case.

This conclusion renders it unnecessary to consider the effect of section 906 of the charter (Laws of 1897, chap. 378), as amended by chapter 466 of the Laws of 1901.

The order and judgment should be affirmed.

Hirschberg, P. J., Bartlett and Jenks, JJ., concurred.

Judgment and order affirmed, with ten dollars costs and disbursements.  