
    The People of the State of New York ex rel. R. Ed. Schofield and Others, Respondents, v. George Schoonover and Others, as Members of and Constituting the Board of Trustees of the Village of Port Jervis, and Others, Appellants.
    
      Tax — village of Port Jervis — act of the clerk considered that of the trustees — notice to parties assessed—plenary power of the trustees. •
    Subdivision 2 of section 25 of the charter of the village of Port Jervis (Laws of 1896, chap. 529) abolished the village board of assessors and directed the village clerk to prepare the assessment roll of the village, so far as possible, from the last preceding roll of the town of Deer Park, and to submit such roll to the board of trustees1 for revision; section 29 of the charter conferred upon the board of trustees the exclusive power to correct the assessment roll and to add to it-any property improperly omitted therefrom, and provided that where the valuation of taxable property could not be ascertained from the last assessment roll of the town, the trustees should ascertain the true value of the property and “ give notice to the persons interested and proceed in the same manner as the town assessors are required by law to proceed in the valuation of taxable property, and hearing all grievances and a revision of the town assessment roll.”
    
      Held, that the act of the village clerk (after preparing the village assessment roll from the town assessment roll of the previous year) in adding to the roll, pursuant to a resolution of the trustees, property not assessed on the town roll, was to be considered as the official action of the trustees who directed, him;
    That the assessment so levied was not invalid because placed upon the roll without notice to the parties assessed — the constitutional requirement as to notice being satisfied by a public notice of the completion of the roll, affording the parties an opportunity for a hearing;
    That section 29 of the charter did not require the trustees to give a special notice to the parties assessed, in addition to the general public notice; but that if it were otherwise, the objection that no special notice was given was not available to the persons assessed who appeared pursuant to the general notice and were accorded a hearing;
    That the direction in section 25 of the charter, that a village assessment .roll should be prepared from the last town assessment roll, was intended simply to . facilitate and lighten the labors of the trustees, and that the trustees had plenary power to change or alter the assessment made upon the "town assessment roll.
    Appeal by the defendants, George Schoonover and others, as members of and constituting the board of trustees of the village of Port Jervis, and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 27th day- of March, 1899, upon the decision of the court, rendered after a trial at the Orange Special Term in a certiorari proceeding, striking from the rolls an assessment against the plaintiffs for personal property.
    
      John W. Lyon, for the appellants.
    
      R. Ed. Schofield, for the respondents.
   Per Curiam :

The relators were assessed on the tax roll of the village of Port Jervis, which is in the town of Deer Park, Orange county, for personal property, as the owners of certain bank stock. By subdivision 2 of section 25 of the charter of the village of Port Jervis (Chap. 529, Laws of 1896) the board of assessors of the village was abolished, and the village clerk was directed to prepare the assessment roll of the village so far as possible, from the last preceding assessment roll of the town of Deer Park after its final revision by the town assessors, following said town assessment roll as to valuation of taxable property. He is directed thereafter to submit the roll when so prepared to the board of trustees for revision, as thereinafter in the said act provided, and after such revision by the board of trustees, and upon receiving from them their direction, stating the several sums to be raised by tax for the current year, to apportion the sums according to the valuation in the same manner as required for town and county tax lists. By section 29 of ‘ the charter it is provided: “ The board of trustees shall have the exclusive power to correct the assessment roll in respect to taxes imposed by virtue of this act, in the same • manner as boards of supervisors may, by law, correct the town rolls of their county; the said board shall also have exclusive power to add to said assessment roll any property improperly omitted therefrom at a just and equitable valuation. • Where the valuation of taxable property cannot be ascertained from the last assessment roll of the town, or where the valuation of such property shall have increased or diminished since the last assessment roll of the town, or an error, mistake or omission on the part of the town assessors shall have been made in a description or valuation of taxable property, the trustees shall ascertain the true value of the property to be taxed from the best evidence in their power, give notice to the persons interested and proceed in the same manner as the town assessors are required by law to proceed in the valuation of taxable property, and hearing all grievances and a revision of the town assessment roll. Upon the completion of the assessment roll and the approval thereof by the trustees, the clerk, shall make and tile a true copy of the same with the treasurer. It shall be the duty of the president of said village forthwith to execute, under the corporate seal, a,nd attach to such roll a warrant to-the clerk as village collector of such taxes, similar in form to the one prescribed by law for the collection of town and county taxes,, specifying therein what time the same shall be returned.”

On the assessment roll of the town of Deer Park for 1896, as finally revised by the town assessors, the relators were not assessed for personal property. In April, 1897, the village clerk prepared an. assessment roll from the town roll of the previous year, but in pursuance of a resolution of the village trustees, added thereto the-holders of bank stock-in the village, including the relators, and an assessment was placed against them for such personalty. These-assessments were imposed without personal notice to the parties-assessed. Upon the completion of the roll the trustees gave public-notice of such completion, and that they would meet on a specified day to review the same on the complaint of any person aggrieved,, in the same manner as is required by law on the part of town assessors. The.relators appeared on grievance day and objected to the assessment on the ground that the same did not appear on the-, town assessment roll the previous year. This objection was over-, ruled and the. assessment roll, confirmed. Thereupon the relatorssued out a certiorari, upon the return to which, after - hearing evidence of the facts stated-, the Special Term made an order striking-the assessments from the roll. From that order this appeal is taken.

The learned judge at Special Term, without passing on the power of the board of trustees to impose an assessment upon the relators,, held that the action of the clerk in adding these, names was unauthorized and void because, by the statute, he was directed to prepare-the village assessment roll from the last town roll. We are of opinion that this ground is untenable. The clerk did comply with the statute, though he went beyond its. terms. But if the trustees had the power to assess the relators, though,they, were not assessed in the town roll, then they were empowered to direct the village clerk to place on the roll' the additional assessments, the same as they might have employed any other amanuensis for the purpose. The action of the clerk is not to be considered as his official action, but as the official action of the trustees who directed him.

Nor is the objection that the assessment was placed on the roll in the first instance, without notice to the parties assessed, well founded. It is ti-ue that no valid tax can be imposed, except upon notice and opportunity for a hearing given to the taxpayer, and a statute which does not provide for such notice and hearing is unconstitutional and void. (Stuart v. Palmer, 74 N. Y. 183.) But, also, “it is undoubtedly true * * * that an assessment may be made in the first instance in any manner that the Legislature sees fit to direct, provided that an unqualified and unfettered right of appeal is given whereby the damages,may be ascertained in the manner required by the Constitution.” (People ex rel. Eckerson v. Trustees of Haverstraw, 151 N. Y. 75.) This was written of proceedings to condemn land, but it is equally applicable to proceedings to impose taxes_or assessments. In fact, throughout the whole State, so far as we know, assessments are first made without hearing the taxpayer or giving him notice. But after the tentative roll has been prepared public notice is given and opportunity is afforded taxpayers for a hearing. We do not think it has ever been -doubted that this method fully complied with all the constitutional requirements. In the case now before us the trustees were required to and did give public notice and hearing to the taxpayers. At that hearing the relators appeared and their grievances were considered and determined. This was sufficient, unless the language of section 29 is to be construed as requiring the trustees to give a special notice to the persons interested in addition to the general public notice. We think that such is not the requirement of the statute, though it is unnecessary to discuss the question at length, because the relators appeared before the board on grievance day and had their hearing. In Jewell v. Van Steenburgh (58 N. Y. 85) the trial judge charged, with reference to lack of notice, If the party appears and has a full consideration, I regard that as a waiver. * * * If Jewell appeared before the assessors, and the matter was considered, that is equal to having appeared upon the notice, if he was .heard in reference to the increased value of his property.''’ As to this instruction Chief Judge Church said: The charge was substantially correct. If the plaintiff appeared, and was heard upon his increased valuation, he had no reason to complain. The only criticism that can be made to it is that the judge should have stated more explicitly that if the plaintiff knew of the increased valuation, and appeared, and had an opportunity to be heard, or was heard with reference to it, he was concluded.”

This brings us to the last question in the case, the duties and powers of the board Of trustees in making the village assessment roll. Such powers and duties are in many respects the samé as those conferred upon the trustees of school' districts; and several opinions from the Superintendent of Instruction have been cited to us to show that the power of such trustee, in making up the roll for school taxes, is limited and by no means as- plenary as those possessed by assessors in making the ordinary assessment roll of the town. We do not deem it profitable to discuss the opinions referred to. The tax imposed for village purposes is a wholly new and original tax.' The language of the statute gives the trustees the broadest power to change or alter the assessments made by the.town assessors. In fact, as the tax is an original one, we think it was necessary, in order for the statute to be valid, that it should give the trustées such plenary power. Before the new tax could be imposed the taxpayer had a right to be heard, for it may very well be that his liability to taxation, or the amount of such liability, had entirely • changed between the time when he was assessed for taxation for general public purposes and the time when he was assessed for village taxation.. As a resident at the earlier time he would be justly liable to taxation on such personal property as he might possess, but before the later period he might move away from the village and not be subject to taxation for village purposes. We think that the direction of the statute, that the last town roll should be prepared for the village.trustees, was merely to give them a basis upon which to- wrork and to facilitate and lighten their labors; but we do not regard it as an integral or vital step in the proceedings to levy the village tax. The validity and effect of that tax proceed from the action of the trustees in preparing a tax roll, in giving notice and hearing to the taxpayers, and from confirmation or revision after such hearing. The relators. might, at the time of the town assessment, have been subject to debts which exceeded the value of their bank stock and exempted it from taxation; but it by no means follows that such was the case when the village assessment was imposed. As the relators gave no proof on this subject, their assessment was proper.

The judgment appealed from should be reversed, with ten dollars costs and disbursements, and the proceedings of the trustees confirmed, with ten dollars costs.

All concurred.

Judgment in certiorari proceedings reversed, with ten dollars costs and disbursements, and proceedings of trustees confirmed, with ten dollars costs. 
      
      This opinion was written by Mr. Justice Cullen before his designation as an associate judge of the Court of Appeals, and is adojpted by this court, the decision of the court was rendered after such designation was made.
     