
    People ex rel. Delaware & H. Canal Co. v. Assessors, Etc., of Sharon. Same v. Assessors, Etc., of Seward.
    
      (Supreme Court, General Term, Third Department.
    
    September 21, 1889.)
    Taxation—Assessment—Review—Certiorari.
    Laws N. ST. 1880, c. 269, provides that the supreme court may allow certiorari on the petition of any person or corporation assessed and claiming to be aggrieved to review an assessment, when the petition shall set forth that the assessment is illegal, or is erroneous by reason of overvaluation, or is unequal, etc.; and, if it shall appear that the assessment is illegal or erroneous, the court may order it to be stricken from the roll, or order a reassessment of the property, or correct such assessment in whole or in part, and testimony may be taken if necessary to the proper disposition of the matter. Under this statute a certiorari was granted on petition alleging illegality of assessment upon the grounds of exemption from taxation, and also of unequal valuation. Held, that it was improper to grant' a motion by defendant to modify the writ so as to prevent the relator from raising any other question than that of exemption, on defendants’ affidavits that no question was raised before them but that of exemption, where an affidavit of a clerk in the office of relator’s attorney stated that he had also objected to the assessment by reason of overvaluation, as the question was one affecting the merits.
    Laws H. Y. 1880, c. 269, provides that the supreme court may allow a writ of certiorari on the petition of any person or corporation assessed and claiming to be aggrieved, to review an assessment, when the petition shall set forth that the assessment is illegal, specifying the grounds of such illegality, or is erroneous by reason of overvaluation, or is unequal, etc.; and, if it shall appear by the return to such writ that the assessment is illegal or erroneous, the court may order it to be stricken from the roll, or order a reassessment of the property, or correct the assessment in whole or in part; and if it appear at the hearing that testimony is necessary to the proper disposition of the matter, such testimony may be taken, and shall constitute a part of the proceedings upon which the court is to determine.
    Argued before Learned, P. J., and Fish and Putnam, JJ.
    
      Edwin Young, for appellants. Hobart Krwm, for respondents.
   Learned, P. J.

In each of these two cases a writ of certiorari under chapter 269, Laws 1880, had been issued to review assessments of relator’s property. The defendants moved on notice to modify the order and the writ, so as not to require any return as to the inequality of the assessment in question as compared with other assessments, and so as to prevent the relator from raising on the return, or in the proceedings, any other question than that of the legal exemption from taxation under chapter 297, Laws 1886. The order and writ were so modified, and the relator appeals. The affidavits of the relator which had been presented to the assessors were used on the motion. The affidavits of the assessors and the clerk were produced, stating that no question was raised before them except that of exemption, and that no claim of unequal assessment was made. In opposition an affidavit of a clerk in the office of relator’s attorney was produced, stating that he did also protest against the assessment as illegal by reason of overvaluation. It would seem that the learned justice who modified the order must have held that the weight of the evidence was that no objection was taken other than that of absolute exemption. It may be admitted that that is the prominent matter in the affidavits used before the assessors.

The petition for the writ of certiorari states the alleged illegality as based on the exemption claimed, and also on the unequal valuation. The act of 1880, above mentioned, undoubtedly gave an entirely new relief. It did not provide for„a mere review of the action of the assessors, but for an examination of the whole matter, and for what was practically a new assessment by the supreme court in case the relator showed that he was aggrieved. There was to be a rehearing on new evidence; and the return of the assessors was not to be conclusive on the matter. The act was undoubtedly passed because the legislature saw that the action of assessors was often arbitrary; and that, under existing laws, there was no redress against the most unjust assessments. It was a remedial statute, and while it may impose some labor on the court, it has already operated to redress injustice, and probably, in some degree, to prevent unequal assessments. In the enforcement of the rights given by this act, it may, perhaps, be a sound principle that the court shall refuse relief where the relator has not made his claim at the proper time to the assessors themselves. It may be reasonable that the court should require that the aggrieved party should first seek his redress from the assessors, so that they may have the opportunity to correct any error which they have made, and that the court may not be unnecessarily burdened. People v. Commissioners, 99 N. Y. 254, 1 N. E. Rep. 773; People v. Osterhoudt, 24 Wkly. Dig. 101. That, however, is not a condition laid down in the statute, which specifies the cases in which the writ shall be granted. And we do not think it necessary to decide that question on this appeal. The defendants have in the present instance limited the effect of the writ by proof made by affidavits; and these affidavits are in conflict with the affidavit of the relator. It seems to us that this matter should not be determined in this summary manner. The question, what shall be the extent of the relief given by the court? is one affecting the merits. It should properly be determined on the return to the writ, and on the evidence taken in the proceeding. If this were only the ordinary writ of certiorari, the court would not determine what relief it should grant until it had heard the return. It would not limit the matters to be returned, as has been done in this instance. Still more when, under this writ, the court does not merely review the proceedings upon the proof before the assessors, but takes new and independent proof, it would seem best that all the proof should be produced which the parties can show to be proper. Indeed, the circumstance that new proof is to be taken by the court would seem to lessen the force of the rule above mentioned, that objections must be made, in the first instance, before the assessors. For if this court is to investigate for itself in any case the matter of unequal assessment, it does not seem that much can be gained by having the party ask the assessors not to assess him unjustly. If some peculiar privilege or right were to be asserted, there would be more reason for calling the attention of the assessors to it. But the duty of making an equal assessment is well known to the assessors; and the party is not limited, in this writ, to the evidence which he produced before them. As he is not limited to that evidence, the argument of the defendants seems to be simply that he must object to the assessors that his assessment is too high in proportion to others. And such objection would seem to be of no special use. But, without passing on the question which may come up when these writs shall be heard on the evidence taken in this court, we are of the opinion that the writs themselves should not be limited as has been done by the orders appealed from.

Order modifying writs reversed, with $10 costs, and printing disbursements, and motion to modify denied, with $10 costs in each case. All concur.  