
    People ex rel. Benjamin E. Valentine, Resp’t, v. The Commissioners of Taxes and Assessments of the city of New York, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 28, 1886.)
    
    New York (city of)—Taxes and assessments upon property within lines of proposed streets—Mandamus—Laws 1874, chap. 604; Laws 1885, chap. 580; Consolidated Act, §§ 672, 822.
    The relator owned property included within the line of Melrose avenue, and which is laid down upon the map filed by the commissioners of public parks, pursuant to Laws 1874, chap. 604, such land being duly entered upon the hooks of the commissioners for the purpose of taxation, in New York city, for 1885. June 18, 1885, after the property had been so lii-ted for assessment, chapter 880, Laws 1885, W'as enacted, by which section ■672 of the consolidation act was amended so that no tax or assessment should he le. led upon unimproved property included within street lines, etc., pursuant to Laws of 1874, chap. 604, Subsequently to the passage of the amendment to section 672 the commissioners levied a tax upon the land in question, and within six months from the completion of the tax plaintiff applied to the commissioners for a remission of the tax. Held, that the commissioners have a discretionary power under the consolidation act to entertain the application, and that the court was justified in directing a peremptory mandamus to issue requiring the commissioners to consider the justice and propriety of the relator’s application with that fairness and impartiality with which every public officer is presumed to act, and to remit the tax upon the ground that the legislature had declare 1 that taxes upon real estate included within the lines of streets shall not be collected where the proceedings for the levying of such tax had not become, complete before the land was appropriated to the public use.
    Appeal from the order of the special term directing that a mandamus issue to the defendants.
    
      G. S. Coleman, for app’lt; B. E. Valentine, for resp’t.
   Macomber, J.

This is an appeal from the order of the special term directing that a mandamus issue to the defendants requiring them to entertain the application of the plaintiff for the remission of his tax, and'to discharge the same.

The relator and another person for whom he is agent own certain property included within the lines of the street or avenue, known as Melrose avenue, and which is laid down upon the map filed by the commissioners of the department of public parks, pursuant to the provision of chapter 604 of the laws of 1874.

This land now so included within the lines of Melrose avenue, was duly entered upon the books of the appellants for the purpose of taxation in the city of New York, for the year 1885. <■

On the 13th day of June, 1885, but after the property had been so listed for assessment, chapter 530 of the laws of 1885, was enacted, by which section 672 of the consolidated act was amended by adding the following clause :

“No tax or assessment shall after the passage of this act be levied, assessed or collected upon any unimproved land included with the lines of streets, avenues, roads, public squares or places shown and laid out upon any map or maps filed by the commissioners of the department of public parks, pursuant to the provisions of chapter 604 of the laws of 1874, and the laws amendatory thereof, or of the. act hereby amended.”

Subsequently to the passage of this amendment the appellants, levied a tax upon the land in question, in accordance with the valuations theretofore made upon the land, as listed for assessment.

Within six months from the completion of the tax the plaintiff applied to the defendants for a remission of the tax and the defendants refusing to remit the same, this proceeding was instituted.

It seems to us that the commissioners of taxes and assessments have a discretionary power under the consolidation act to entertain the application of the relator. Section 822 of the consolidation act declares :

“ The commissioners of taxes and assessments are hereby invested with power to remit or reduce a tax imposed upon personal or real estate.”

Thence follows in the same section general directions as to the manner of exercising such power.

An ingenious argument has been made by the appellant’s counsel to the effect, that though this section seems to be clear and specific, yet it must be read in connection with chapter 410 of the laws of 1867, by which the power of the commissioners of taxes and assessments appears to be restricted by section four of that -act to cases where there is an error in entering the property upon the assessment-roll or books. The counsel cited us to the case of People ex rel. New York Medical College v. Campbell (93 N. Y., 199), by which it is claimed that section four of the laws of 1867 still stands unrepealed.

The Court held, upon that question, that as the law stood at the time the case before them arose, a tax could be lawfully remitted only for cause, as where property was exempt from taxation or assessment.

The question, therefore, is not whether the legislation by which section 822 of the consolidation act was passed was wise or not, but it is rather what is the necessary construction to be given to that section, and the section 4 of the Laws of 1867, as well as other preceding and subsequent statutes, not necessary now to be mentioned, which prescribed the mode and the cause for which a tax might be remitted by the commissioners. In the consolidation act, however, many of the preceding restrictions were retained, for instance, that the majority of the commissioners are required to agree before a tax can be remitted or reduced, and that a tax upon personal property cannot be remitted unless the applicant shall satisfy the commissioners that he was prevented by absence from the city, or by illness, from making his application within the time allowed for the correction of taxes, and that the application for any remission or reduction of taxes upon real property must be made within six months after the delivery of the books to the receiver of taxes for the collection of such tax.

There is, therefore, no ground now existing, as there was formerly, upon which only the commissioners were permitted to act, as, for instance, where the assessment was illegal or the property exempt from taxation at the time of the entry of the property for assessment. Nevertheless the action of the commissioners must be taken for good cause shown to them, and not from caprice. In the case before us, it would seem to be unfair upon the part of the city to insist upon the retention of this assessment and the collection of this tax, inasmuch as it has by its proper officers opened the land to the public declaring, in the most unequivocal manner, that it shall remain an avenue for the benefit of the public. It is a case where, by legislation subsequent to the listing of the property for taxation, it becomes inequitable and unfair for a municipal corporation to insist upon the collection of a tax by reason of its own action done without the knowledge of the relator, but which presumably was taken against his interest and consent.

We are well satisfied that the court was justified in directing a peremptory mandamus to issue requiring the commissioners to consider the justice and propriety of the relator’s apphcation with that fairness and impartiality with which every pubhc officer is presumed to act, and to remit the tax, upon the ground that the legislature had declared that taxes, upon real estate included within the lines of streets, shah not be collected where the proceedings for the levying of such tax had not become complete before the land was appropriated to the pubhc use.

The relator’s apphcation did not ask the commissioners to do an arbitrary and unlawful act, as in the case of the People ex rel. New York Medical College (93 N. Y.), 199, but simply to exercise the power vested in them for a lawful purpose, and it is based upon high equitable considerations having the support of the statute already cited.

Nothing in our decision, or in that of the special term, can be properly so construed as to affect any claim for exemption from the payment of arrears of taxes for the years prior to 1885 on this property, or any other property similarly situated, under chapter 530, of the laws of that year.

The order of the special.term should be affirmed, but under ah the circumstances without costs.

Daniels and Brady, JJ., concur.  