
    Lena M. Trumbull, Respondent, v. F. B. Palmer, as President, and E. T. Turnure and James E. Smith, as Trustees, Composing the Board of Trustees and Assessors of the Village of Spring Valley, and Others, Appellants.
    
      Village tax — right of a taxpayer to notice and a hearing before the assessing officers — an absolute right of review is not its equivalent — an action to restrain the collection of a tax not maintainable—nor a taxpayers action for that purpose*— when an action to remove a cloud from a title will lie.
    
    A taxpayer in a village has an absolute right to notice and a hearing before the assessing officers before a valid village tax can be imposed upon him.
    Such right to a hearing contemplates that the taxpayer in the procedure of the imposition, determination and fixing of the tax shall have an opportunity, incident to that procedure, to attend and to be heard before the officers, or board who, in the first instance, impose the tax or (have power' to adjust or to correct ■ the amount upon or after such hearing.
    The fact that a taxpayer has an ábsolute'right.to review the action of the assessing officers by certiorari does not satisfy the legal requirements with respect to a notice and a hearing. ' . . ' ■
    An action will not lie to restrain the collection, of a tax on the bare ground that the assessment is illegal. !
    The fact that a village tax is invalid for want of the notice and hearing before discussed does not entitle a taxpayer of the village -to maintain a taxpayer's, action under section 1925 of the Code of Civil Procedure'.
    It appearing, however, that, by the provisions! of sections 112 and 118 of the Village Law, the annual tax is made a lien upon real property and 'that the assessment roll is made presumptive evidence of' the regularity of the assessment and of the right to levy the tax, a taxpayer of the village may maintain an . action to have her assessment declared void as a cloud upon.the title to her Teal estate. .
    Appeal by the defendants, F. B. Palmer, as president, and others, as trustees, composing the board of trustees - and ' assessors of the village of Spring Valley, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 19th day of January, 1904, upon the decision of' the court rendered after a trial at the Rockland Special Term.
    
      George A. Blauvelt [Charles A. Hitchcoch with him on the brief], for the appellants.
    
      Charles. M. Stafford, for the respondent.
   Jenks, J.:

The assessors did not fulfill the statutory requirements as to griev ance day. They published the notice in but one village newspaper, when there were two, and they named three hours for hearing when the statute' required four. .(Village Law [Laws of 1897, chap. 414], § 105.). They did not attend at the place appointed. One of the assessors testifies that .they were in attendance -during/ the entire time named in the notice at chp office of one of their number, situate in the same building which contained the corporation rooms, but on another floor — that is, they were in ‘ hearing notice or telephonic connection.” But on cross-examination lie testifies he was in that office between one-and four o’clock, “ more than, once or twice, once anyway,” and that he presumed that was the way with the others, though he did not know. But the corporation rooms were closed at this time, and there is evidence to justify the inference that there was not even a notice of direction to another place posted upon their door. The meeting prescribed by statute was not held, although the assessors did call in during the time appointed at a place other than that appointed, and after they went out remained within hearing notice or telephonic communication.

Notice and a hearing were the absolute right of the taxpayer before there could be a valid tax laid. (Matter of Douglas v. Board of Supervisors, 172 N. Y. 309 ; Stuart v. Palmer, 74 id. 183.) It is contended, however, that a hearing was afforded in that the taxpayer had a remedy by certiorari. Although he has this absolute right (People ex rel. Thomson v. Feitner, 168 N. Y. 441, 458) I think that this is not a hearing that satisfies the law. I think 'that the intendment of the law is well expressed by Denio,,Ch. J., in Matter of Trustees N. Y. P. E. Pub. School (31 N. Y. 574) as quoted by Earl, J., in Stuart v. Palmer (supra) : It is manifestly proper that the taxpayers should have notice of the imposition proposed to be laid upon them and an opportunity for making suggestions and explanations to the proper administrative board or officer.” Cooley on Taxation (3d ed. 632) says: “ When, therefore, either directly by the statute or by some officer or board under its authority, a certain time is fixed for the meeting of a board of review and the board fails to meet, or a certain time for the return and filing of the assessment for inspection before the meeting of the board and it is not filed, whereby opportunity for inspection is lost — the tax proceedings must be regarded as having failed to become effectual because of the failure of the officers properly to follow them up as" required by law. No argument can be admissible in such a case which proposes the acceptance of something else as a substitute for the securities the statute has provided. To substitute anything would require legislation, and even legislation for the purpose would be of doubtful validity if it failed to provide what would fully accomplish the same substantial purpose.” I think that a hearing intends that the taxpayer in the procedure of the imposition, determination and fixing of the tax shall have an opportunity, incident to that procedure to attend and to be heard before the officers or board who, in the first instance, impose the fax or. have power'to adjust or to correct the amount upon or after such hearing.'- ¡Notwithstanding '. the present scope, sweep and far-reaching power of the writ of certiorari in such cases (People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417; People ex. rel. Thomson v. Feitner, supra), it Remains a writ of review arid it must be regarded. (People ex rel. Twenty-third Street R. Co. v. Feitner, 92 App. Div. 518.) It contemplates application in the first instance to the assessing officers (§ 250.) I do not overlook Hagar v. Reclamation District No. 108 (111 U. S. 701). But a close reading of that judgment shows that the court reached its conclusion in view of the fact that the assessments could only be enforced by suit, and essential to thvalidity-of such suit were notice and an opportunity to be heard.

An action does not lie to restrain the collection of a tax on the bare ground that the assessment -was . illegal.” (Susquehanna Bank v. Supervisors of Broome County, 25 N. Y. 312; appd., Western R. R. Co. v. Nolan, 48 id, 513, 519; Kilbourne v. St. John, 59 id. 21, 26; Balogh v. Lyman, 6 App. Div. 271, 275.) After a learned and elaborate discussion in Mercantile Nat. Bank v. Mayor (172 N. Y. 35), Gray, J., says: “ Equity will go far to afford relief in cases of mistake; or for the prevention of fraud ; or to secure to the citizen the equal protection, of the''laws, but it is , not its province to interfere with the collection of a tax,- in a case Where the grievance assigned does not relató to some question o'f fraud, Or of.illegal discrimination, or classification.”

I think that the plaintiff has no status as a taxpayer under section 1925 of the Code' of Civil Procedure. It is hard to see how this judgment" prevents either waste or injury to the estate,- funds or othér property of the village. ' It must be assumed that whatever taxes- have been paid to the collector will be used for village \ purposes irrespective of the' legality of the procedure of the imposition. In Mercantile Nat. Bank v. Mayor (supra) the court say, per Gbay, J., Public policy is against the interference by injunction to restrain the collection of a tax,--to tiie- delay and detriment of the x public business,” citing Western R. R. Co. v. Nolan (supra). And m Kilbourne v. St. John (supra) it is held that a- taxpayer cannot maintain an action in equity against the custodian to restrain the application of the tax levy. The words “waste and injury” include only .illegal, wrongful or dishonest illegal action. (Matter of Douglas v. Board of Supervisors, supra; Talcott v. City of Buffalo, 125 N. Y. 280. See, too, Comins v. Board of Supervisors of Jefferson County, 64 N. Y. 626, which cites Ayres v. Lawrence, 63 Barb. 454.) .

But I think that the plaintiff had her remedy in equity for relief against cloud upon title. This remedy is expressly affirmed and recognized in County of Monroe v. City of Rochester (154 N. Y. 570) in an opinion which also discusses the scope of the wilt of certiorari. It is said, per Gray, J., “ What is essential to the maintenance of the action is that the assessment was illegal and that the illegality can only be made to appear by extrinsic evidence.” Section 112 of the Tillage Law provides that the annual tax is a lien upon real property upon which it is levied from the date of the delivery of the warrant to the collector. The warrant has been delivered in this case. Section 118 of the Tillage Law provides: “ The return of unpaid taxes by the collector,' or treasurer, or a copy thereof certified by the clerk under the corporate seal, shall be presumptive evidence of the facts stated therein. A.n assessment-roll filed with the clerk, or a copy of the same, or any part thereof, certified by him under the cop orate seal, shall be presumptive evidence of the contents thereof, of the regularity of the assessment, and of the right to levy such tax.” And the court has found: “ The illegality of said assessment and tax levy had to be, and was, proven by evidence outside of the record of assessment and taxation, and in particular as to newspapers, and'the publication required by statute,, the poll tax and persons liable to .a poll tax'.” In Rumsey v. City of Buffalo (97 N. Y. 114, 117) the validity of the assessment was presumed by the defendant’s charter, and the court held that the assessment created an apparent lien, ^ presumptively valid, and that the plaintiffs had “ a clear right as soon as the assessment -was laid, to come into court, to have it declared void as a cloud upon their title.” I think then that under the authorities this action, which is brought also to remove a cloud upon title, may be so far .sustained, and the judgment accordingly should not be disturbed. The authorities are collated in County of Monroe v. City of Rochester (supra). Sanders v. Village of Yonkers (63 N. Y. 489) is not to the contrary, in that the court is careful to point out that before the lease was given there was nothing in the'charter making the assessment when completed presumptive ox prima facie evidence of itself of its regularity, nor allegation in the complaint that the assessment was on its face regular, nor any record which makes it prima faeie or presumptive evidence of anything.

■The .judgment should be. modified so as only to- remove a cloud on the title of the plaintiff’s land, and as .thus modified affirmed, without costs to either party.

Hibschbebg, P. J., Woodward and Hooker, JJ., concurred.

Judgment modified in accordance with opinion of Jenks, J., and as modified affirmed, without costs, of this appeal. 
      
      Tax Law (Laws of 1896, chap. 908). — [Rep.
     