
    The People of the State of New York ex rel. Hattie L. Kendall, Relator, v. Thomas L. Feitner and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    
      Oertiorari to review an assessment as excessive and unequal —first heard at Special Term—four months’ time — scope of the common-lato writ — refusal to swear and, " .examine witnesses. '■ ■
    
    Where the return to a writ of certiorari, issued to review an assessment for taxation on real property in the city of New York upon the ground of„excessive valuation and of inequality, raises an issue of fact, the proceeding shouid be heard at Special Term, pursuant to the provisions of the Tax Law (Laws of 189.6, chap.' 908), and not at the Appellate Division, under section 3188 of the Code of Civil Procedure.
    
      The provisions of the Code of Civil Procedure govern as to the four months’ time within which such a writ may be issued, but as to all proceedings relating to the mode and scope of the review of assessments, alleged to be erroneolis for excessive valuation or inequality, the provisions of the Tax Law are controlling and exclusive.
    A common law writ of certiorari will not be issued to review an assessment. which is alleged to be erroneous because of overvaluation or of inequality.
    What statement in a petition, that witnesses presented to the board were not. . sworn and examined as was requested, does not present the question whether there has been a failure of duty in that respect, considered.
    Cebtiobabi issued out of the Supreme Court and attested the 30th day of August, 1899, directed to Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, commanding them to certify and return to the court all and singular their proceedings in relation to the assessment of the relator’s real estate for the purposes of taxation.
    
      Edward P. Lyon, for the relator.
    
      George S. Coleman, for the respondents.
   Hirschberg, J. :

The relator’s grievance is involved in the allegation that real estate owned by her in the borough of Richmond has been assessed for the purposes of taxation in the year 1899 at the sum of $47,000, which she asserts is an excessive valuation and an assessment at a higher proportionate rate than that applied to other real estate on the same roll and in the vicinity. In addition to the general allegations of excessive valuation and of inequality, it is alleged in the petition that on or about April 18, 1899, she made written application to the board of taxes and assessments of the city of New York to have the assessment reduced, a copy of which application is attached to the petition, and that (to quote the words of the petition) “ Both before and thereafter and wdthin the time allowed therefor by law your petitioner applied to said board of taxes and assessments, at their offices in the Borough of Richmond and Borough- of Manhattan, to be heard upon said applications, presented witnesses to testify under oath as to the truth of the allegations of said applications'and as to the value of said property, and asked to have said witnesses sworn and examined and a record made of their testimony, but said board of taxes and assessments refused' to swear said witnesses or to take their testimony, as your petitioner is informed and believes, but stated that the facts- stated' in said written applications were sufficient.”

The return filed by the commissioners of taxes and assessments asserts that the assessment complained of has been made at the sum for which the property would sell under ordinary circumstances, and that such property is not overvalued or assessed at' a higher proportionate rate than other real property on the same roll. The return contains no specific denial of the allegation that witnesses were jiresented on behalf of the relator, whom the respondents refused to examine, but admits the presentation and filing of the written application for a reduction. It asserts that the respondents, after examining into the statements made by the relator in such written application, fixed the assessment at the sum named, which they decided to be the'sum for which the relator was lawfully assessable.

The cause has been noticed by the relator for hearing in the Appellate Division under section 2138 of thé Code of Civil Procedure, and the only question now to be considered is the correctness of this practice. I can find no sanction for such practice in reason, statute or adjudication. The section referred to expressly provides that the cause which may be so noticed for hearing must be heard in the Appellate Division upon the writ and the return and the papers upon which the writ was granted. This would be entirely consistent and suitable where an issue of law is raised; but as these documents in the present instance raise an issue of fact not triable in an appellate tribunal, this court on an examination of the record could only dismiss the proceedings, assuming the relator’s practice to be regular and in contemplation of the law. On- the other hand, if the cánse -is heard, at Special Term, pursuant to the provisions. of the Tax Law (Ohap. 908, Laws of 1896), the court may take proof on the questions of value and equality which are placed in issue, or send the matter to a referee, if that course be deemed desirable.

The relator insists, however, that in the city o'f New York the provisions of the Tax Law are not exclusive, and that an aggrieved taxpayer may there resort, at his option,, to either the writ provided by that law or to the common-law or Code writ. She bases this contention on the language of section 2120 of the Code of Civil Procedure, subdivision 2, to the effect that a writ of certiorari under the Code may be issued “ where the writ may be issued at common law, by a court of general jurisdiction, and the right to the writ, or the power of the court to issue it, is not expressly taken away by a statute.” It is a sufficient answer to this contention that the common-law writ of certiorari extended only to the review of assessments void for want of jurisdiction on the part of the taxing officer or in relation to the specific property, or to the review of assessments which were obnoxious to the charge of some other illegality as dis-„ tinguished from error in judgment whether affecting a question of fact or of law. The office of the common-law writ was not to revise and modify or set aside assessments on the ground that they were excessive or unequal. (Cooley Taxn. [2d ed.] 753; Owners of Ground, etc., v. The Mayor, 15 Wend. 374; People v. Trustees of Ogdensburgh, 48 N. Y. 390; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 id. 600.) In the case last cited, the authorities in this State on the subject are collated, and while it is intimated that they may be lacking in harmony and uniformity, the conclusion is reached that in all cases where any other available remedy exists, the common-law writ will be confined to its original and appropriate office, viz., the bringing up of the record of an inferior court or tribunal to enable the court of review to determine whether the former has proceeded within its jurisdiction.

By chapter 269 of the Laws of 1880, the Legislature provided for the issuing of a special statutory writ, returnable at the Special Term of the Supreme Court, providing for the review and correction of illegal, erroneous or unequal assessments ; and the provisions . of that statute are substantially continued and enlarged in the existing Tax Law of 1896, to which allusion has been made. That the adequate remedy thus afforded to the taxpayer is to be deemed exclusive of the general provisions of the Code has been repeatedly asserted by the Court of Appeals. (People ex rel. Church of the Holy Communion v. Assessors of Town of Greenburgh, 106 N. Y. 671; Matter of Corwin, 135 id. 245 ; U. S. Trust Co. v. Mayor, 144 id. 488 ; People ex rel. Manhattan R. Co. v. Barker, 152 id. 417.) In Matter of Corwin (supra) Judge Maynard said (p. 249):

Section 2127 of the Code merely embodies the pre-existing practice of the courts upon the subject. But this is a statutory proceeding, under an act passed after the provisions of the .Code are to be deemed to have been enacted (§§ 3315, 33.56), and it was held by this court in People, etc., v. Assessors of Greenburgh (106 N. Y. 671), that, this act regulates the review of assessments in towns, cities and villages by certiorari, and renders inapplicable to such cases the general provisions of the Code relating to such proceedings.” In U. S. Trust Co. v. Mayor (supra), Judge Gray said (p. 493): “ For the plaintiff it is argued that the proceeding by writ of certiorari was in enlargement and not in,restriction of the taxpayer’s remedies, and could not be regarded as a -remedy exclusive in its nature. In our opinion the act of 1880 (Chap. 269), which provided for the allowance of writs of certiorari, furnished an adequate remedy for the dissatisfied taxpayer and confined him to its adoption, in all cases where the illegality of the proceedings of the taxing officers consisted, not in a lack of jurisdiction on their part to act, but in the commission of errors which vitiated the assessment and laid it open to cancellation or reversal.” In People ex rel. Manhattan R. Co. v. Barker (supra), Judge Yann said (p.. 430): “ Thus we have a writ of certiorari with novel' functions hitherto unknown to such methods of review. The common-law writ brings up the record for inquiry into, jurisdiction and regularity, and, in criminal or quasi criminal cases, the evidence also ‘ to see whether, as a matter of law, there was any proof which could warrant a conviction of the relator.’ (People ex rel. C. G. L. Co. v. Board of Assessors, 39 N. Y. 81; People ex rel. Cook v. Board of Police, 39 N. Y. 506, 512, 518.) The general statutory writ brings up. both record and proceedings for examination, not only as to jurisdiction and method of procedure, but also to see whether there was a violation- of any rule of law, or any competent jjroof of all the essential, facts, or a ]3reponderance of 23roof against the existence of any of those -facts. (Code Civ. Pro. secs. 2120 to 2148 ; People ex rel. Coyle v. Martin, 142 N. Y. 352.) The special statutory writ now before ns differs from its 23i'ede-cessors in one remarkable respect, in that it permits a redetermination of all questions of fact upon evidence, taken, in part, at- least, by the Special Term, or under its direction. (People ex rel. U. and D. R. R. Co. v. Smith, 24 Hun, 66, 71; People ex rel. Grace v. Gray, 45 Hun, 243, 245.) As was well said by one of the learned counsel for the relator in his argument before us upon the merits, the ‘provision that testimony may be taken in the judicial proceeding which the act authorizes, implies that the judicial tribunal shall examine, consider and give due effect to the same in determining the question of illegality or erroneous overvaluation or other issue of fact arising upon the petition and return ; in short, that the judicial tribunal shall deal with the testimony as courts deal with evidence, and not in the manner of mere administrative tribunals like a board.of tax commissioners.’ What is called a review may thus become a proceeding in the nature of a new trial. The- return is not conclusive, as in the common-law and Code writs. (People ex rel. Miller v. Wurster, 149 N. Y. 549 ; Harris on Certiorari, § 126.) The provisions of the Code do not apply to it. (People ex rel. Church of H. C. v. Assessors, 106 N. Y. 671.) The petition is regarded as the complaint, the return as the answer, and, in deciding the issues joined thereby, the court may call witnesses to its aid, and their testimony becomes a part of the proceedings upon which the determination of the court is to be made.”

The learned counsel for the relator, however, insists that the cases decided by the Appellate Division in the first department (People ex rel. Bronx Gas Co. v. Barker, 22 App. Div. 161; and People ex rel. Powder Co. v. Feitner, 41 id. 544) are authorities in support of the practice which he has adopted. I do not so read the cases, and certainly there is nothing in them in conflict with the views herein expressed. In the Bronx Gas Gompany ease it was held that the provisions of the General Tax Law (Laws of 1896, chap. 908, §§ 250, 251), relative to the time when a petition to review an alleged illegal assessment must be presented to the court, have no application to assessments for taxation made by the city of New York. By the sections referred to it is required that the application for the writ must be made within fifteen days after the completion and filing of the assessment roll, and of the first posting or publication of the notice thereof as required by the Tax Law. The Consolidation Act (Chap. 410, Laws of 1882) did not require the commissioners of taxes of the then city of New York to publish notice of the completion and filing of the tax rolls. The court held that under sections 817, ;819 and 820 of that act, the assessment rolls became final, in any •event, on June first, and that a writ of certiorari issued pursuant to .-section 2125 of' the Code, within four calendar months after the -determination to be reviewed became thus final and binding, was in due time ” as required by section 250 of the Tax Law of 1896. It is to be noted that in this case the Appellate Division remitted '•the proceedings to the Special Term for determination upon the ■questions arising under the writ. In the Powder Company case (supra) the court held that the power of the Supreme Court to issue a common-law writ of certiorari to review an assessment which was concededly void for want of jurisdiction, was not taken away Tbv section 250 of the General Tax Law, or by any other statute. The only question presented was that of the power of the court to issue the writ. So in People ex rel. Am. Thread Co. v. Feitner (30 Misc. Rep. 641), also cited by the relator herein, the opinion ¡being copied in full upon the brief, the writ was issued to review an ¡assessment void for want ¡of jurisdiction, and the court held that in ¡such.a.case either the Tax Law writ or the Code writ might issue ;at rthe option of the applicant.

As the provisions of the Consolidation Act above referred to are .'substantially retained by sections 892-895, 907 and 909 of the charter of the city .of New York as now created (Chap. 378, Laws of ■1897), I ana of opinion that the application for the writ inthis case -was timely. The .application was within four months of the final •determination by the taxing officers, and the Code provision should be made to apply in the absence of any legislative authority on the part of such officers to limit the time of the aggrieved taxpayer by •resent to the provisions of the General Tax Law. ■ To that extent ■¡the cases in the first .department above cited furnish authority. (And see, also, People ex rel. Langdon v. Feitner, 30 Misc. Rep. 646.) But as to all proceedings relating to the mode and scope of the •review of an assessment alleged to be erroneous on the grounds ¡stated in the petition herein, the provisions of the Tax Law must be .regarded as controlling and exclusive."

It is further contended on behalf of the relator that the refusal of ¡the commissioners of taxes and assessments to examine her witnesses ■«under oath renders .their action illegal in confirming and correcting -¡the assessment as final .and binding .and vitiates the entire assessment. The action of the commissioners, if correctly stated, may have been irregular and unlawful, without operating to deprive them •of jurisdiction or to render the assessment void. Compliance with their statutory duty might probably have been enforced by mandamus. But it is by no means clear that the commissioners have failed in the discharge of the duty imposed on them. Section 898 ■of the charter provides that the board of taxes and assessments shall ■designate one or more deputy tax commissioners from the whole number of such deputies- to act in each of the boroughs in receiving applications for revision and in taking testimony to be reduced to writing and to be transmitted with the application and the recominendati'on ■of the deputy or deputies to the board at its main office. It is further provided that the board shall itself hear at its main office all Applications for revision made by corporations, and may prescribe the time and place of hearing in the several boroughs as to all other applications. The object of this difference is indicated in the expression that .the board" may make rules and regulations ’ on the •subject to the end that the taxpayers of each borough, other than •corporations, may have a hearing in the borough in which they reside or in which their property assessed is situated.” It will not be assumed that the respondents have not complied with the provisions •of this section. If a time and place has. been appointed for a hearing before the deputy or deputies designated for the borough of Richmond, the relator’s application should have been made to the proper officer and at the prescribed time. The statement in the petition, that her application was made and her witnesses presented to the" entire board, does not raise the question of failure of duty in refusing to swear and examine them in the absence of any suggestion that the board failed to designate a deputy to hear and investigate the complaint under and in accordance with the provisions of the charter.

The proceedings should be remitted to the Special Term of the ■court in Richmond county for the hearing and determination of the issues.

All concurred, except Jeexs, J., taking no part.

Proceedings remitted to the Special Term of the Supreme Court in Richmond county for hearing and determination of the issues.  