
    The People of the State of New York ex rel. Charles R. Batt and William Lummis, the Purchasing Committee of and Trustees for the Mortgage Bond Holders of the Ogdensburg and Lake Champlain Railroad Company, and the Ogdensburg and Lake Champlain Railroad Company, Respondents, v. Andrew H. Rushford and Others, as Assessors of the Town of Clinton in the County of Clinton and State of New York, Appellants.
    
      Evidence—judgment not reversed because of the admission of evidence not affecting the result — rules of evidence not strictly applied to a reference of issues raised by the return to a writ of certiorari—abuses on such a reference — selling price as evidence of value—consideration named in a deed—what is not gross neglect of assessors in assessing property unequally.
    
    The Appellate Division will not reverse a judgment entered upon the report of a referee appointed to determine the issues raised by the return to a writ of certiorari issued to review an assessment on real property for the purpose of-taxation, which is claimed to be excessive and unequal, because of the admission of incompetent testimony,by the referee, where the court can see that the appellant was not seriously prejudiced thereby and that the judgment should be affirmed if the objectionable evidence were wholly eliminated.
    
      Semble, that, upon such a reference, the rules respecting the admission of testimony need not be applied with the strictness required on the trial of a common-law action before a jury.
    The practice, upon such a reference,, of prolonging the proceedings beyond necessary limits, by offering immaterial and perhaps incompetent testimony, and of calling specially and poorly prepared non-resident real estate dealers or contractors, not having special knowledge of the property under consideration, is condemned by the court.
    The evidence of the price paid for real property on a bona fide sale thereof is some evidence of its value, but the consideration named in a conveyance, in the absence of evidence that the sale was bona fide, and that the consideration mentioned was the true consideration, and was not affected by special circum-' stances, is too uncertain to be considered even prima facie evidence of the value of the real property described therein.
    -A finding that the assessors of a town were guilty of gross negligence in- assessing the property of a railroad company at a greater proportionate value than other property on the same roll was assessed is unwarranted, where it appears that the assessors were farmers who had no special knowledge of the value of ' railroad property; that, in assessing the railroad property at a greater proportionate value than other property on the roll, they followed substantially the practice of their predecessors, and that, at the time they fixed the assessment, they had not been furnished with detailed information in regard to the value of the railroad property.
    
      Appeal by the defendants, Andrew H. Rushford and others, as ■•assessors of the town of Clinton in the .county of Clinton and State ■of ¡New York, from a judgment of the Supreme Court in favor of the relators, entered in the office of the clerk of the county of Clinton on the 24th day of July, 1901, upon an order made at the ¡Montgomery Special Term, and entered in said clerk’s office on the 15th day of July, 1901, confirming the report, of a referee and reducing the relators’ assessment in the said town of Clinton, and also from said order upon which such judgment was entered.
    
      Lucien L. Shedden, for the appellants.
    
      John P. Badger, for the respondents.
   Chase, J.:

The town of Clinton is situated in the northern part of Clinton county, adjoining the Canada line. It contains 40,656 acres, consisting principally of wooded and rough farming land. It had by the census of 1895 a population of 2,377. The town contains two small villages, Cherubusco and Clinton Mills,- each of which has a railroad station, a post office and general stores. In the town is a steam lumbering mill and two or three creameries. The assessment roll for 1898 contains the names of 350 resident real property owners and 538 distinct pieces of real property are assessed. The total real property assessment for the year 1898 was $236,585. The property of the relators situated in the town of Clinton consists of an old single-track railroad passing through the town a distance of nine and eighty-two one-hundredths miles, assessed at $95,000; two miles of side track, assessed at $5,000; two cheaply constructed depots, one assessed at $425, and the other at $375; a turntable, assessed at $180; a watercourse consisting of about one acre of land, assessed at $200 ; a wood yard consisting of about four acres-of land, assessed at $40, and an unused gravel bank entirely disconnected from the. other property of the relators and containing about seventeen acres of land, assessed at $115. The total assessment against the relators as made by the defendants was $101,335.

The relators, being dissatisfied with their assessment, appeared before the assessors on the day fixed for the review of their, assessments and made application for a reduction of their assessment. The written statement then filed with the defendants by the relators stated that the assessment made against them was excessive and unequal in that their property was assessed at a higher proportionate valuation than the other property on the same assessment roll mentioned, and also that the main line of their railroad was not worth to exceed $6,400 per mile, and their side track was not worth to exceed $1,000 per mile. The assessors thereupon deducted $4,000 from the assessment against the main line of railroad, leaving the total assesment against the relators $97,335, being about forty-one per cent of the entire assessments of said town.

Relators thereafter made an application for a writ of certiorari to review said assessment, which was granted, and the defendants made their return thereto. The issues were by • consent referred to a referee to take evidence upon the several matters in issue and report the same to the court with his findings of fact and conclusions of law thereon. Evidence was taken by said referee and a report was made to the court, by which report the referee found that the property of the relators in the town of Clinton could be reproduced for $103,640, and that the real property in the town of Clinton other than the property of the relators was assessed in the aggregate at a sum not exceeding sixty-five per cent of its full value, and he also found and decided as conclusions of law that the assessment against the relator should be reduced to the sum of $67,636, and that the defendants acted with gross negligence in making such unequal assessment.

The court at Special Term, after deliberation, sustained the findings and conclusions of the referee and judgment was entered accordingly. The determination of this controversy on the merits is wholly one of fact.

We have carefully examined the ponderous record herein and in our judgment there is sufficient material and competent evidence to sustain the findings so made by the referee and confirmed by the court.

The appellants contend that incompetent and immaterial testimony was admitted on the trial, and considered by the referee and the court to their prejudice. We assume that not alone on the trial of common-law actions, but also on hearings in proceedings of this kind, parties are entitled to be confronted with competent and material testimony, and if the result of a trial or hearing has been influenced and dominated or is dependent upon incompetent and immaterial testimony, the judgment therein ought to be reversed.

The referee appointed in proceedings of this kind is only an aid to the court, and in the admission of testimony by such referee the rules are not held with the same strictness as upon the trial of common-law actions before a jury. (People ex rel. Railroad Co. v. Keator, 36 Hun, 592; People ex rel. O'Shea v. Lantry, 44 App. Div. 392.)

Where it can be seen that the reception of incompetent testimony has not seriously prejudiced the appellant or materially affected his rights, and where the judgment should be sustained by this court if such objectionable testimony were wholly eliminated, the judgment as rendered is not necessarily to be reversed by reason of its inclusion in the record. While we are of the opinion that the judgment herein should be sustained in view of pending proceedings we desire to condemn the practice of the parties hereto in prolonging the proceedings beyond necessary limits by offering immaterial and sometimes, perhaps, incompetent testimony, tending only to confuse the merits of the controversy. The testimony of experts is frequently necessary, and their testimony may be the most available as well as the most satisfactory and conclusive to be offered to a referee and court in the determination of matters of assessment, but the testimony of specially and illy prepared non-resident real estate dealers or contractors not having special knowledge of the value of the property under' consideration is of little or no value to the court. The testimony of relator’s witnesses, Murtagh, Kelley and Lynch, come under this condemnation.

Evidence of the actual price paid on bona fide sales is some evidence of value. It was said in Parmenter v. Fitzpatrick (135 N. Y. 190): “ In the ordinary case of purchase and sale of property the fact that the purchaser and seller have met and agreed upon a price, and actually bought and sold the property at that price, ought to be in the nature of things some evidence of the value of that property which has thus changed hands in a bona fide transaction.”

The consideration named in conveyances is too uncertain, however, to be considered even prima facie evidence of the value of the property described in such conveyance. . In People ex rel. Mayor, etc., v. McCarthy (102 N. Y. 630) the court say: “Horule of law requires the true considération 'paid upon a transfer of land to be inserted in conveyances of real estate, and it is within the common knowledge of all conveyancers that the amount stated therein is often determined by fanciful, capricious and arbitrary considerations which render it'utterly unreliable as evidence of value.”

In People ex rel. Carter v. Williams (48 N. Y. St. Repr. 207), referring to the consideration named in a number of conveyances as'evidence of the value of the property described therein, the court say: The evidence derived from the sales list ’ was largely relied upon by the relator. This evidence was competent only because it was made so by the board of assessors themselves, and is not ■common-law evidence.”

We conclude, therefore, that the conveyances received in evidence where the sales therein referred to were not thereafter shown to be dona fide and the consideration named the true consideration as between buyer and seller, uninfluenced by special circumstances, should have ho weight in sustaining the findings of fact.

Direct evidence of the value of property by competent witnesses is always admissible. The relators called a large number of resident real property owners and taxpayers of the town of Clinton, and, although they were asked to testify against their interests, gave testimony which, if believed, shows that the real property of the town is only assessed for a fraction of its full value. As illustrative of the testimony so given by them, we give a summary of the testimony of five such witnesses.

One witness, whose farm was assessed at $735, testified that his. farm contained 232 acres, on which was a house, one barn 70 feet long, sheds, a horse barn and a creamery building; that the house-cost $1,000 and barns between $700 and $800, and that his farm was worth $3,000. On this farm he kept 25 cows, and that year-had raised 1,000 bushels of potatoes on 4 acres of land.

Another witness, whose farm, was assessed at $500, testified that: his farm contained 213 acres; that he kept horses, cattle and sheep his buildings were insured at $1,000, and he stated that the fair value of the farm was from $1,800 to $1,900.

One witness, the owner of a village house and lot assessed at $200., testified that he purchased it five years ago for about $1,000 and. that the house was now insured for $1,000.

Another witness, whose farm was assessed at $835, testified that there was bn his farm a house and three large barns and that he raised that year between 1,200 and 1,300 bushels of potatoes, 300-bushels of oats, and that he kept twenty cows and that his farm was worth $3,000. •

Another witness, whose farm was assessed at $310, testified that his house was old, that he had on his farm two large barns, and that: he raised that year 1,200 or 1,300 bushels of potatoes and other-crops and that his farm was worth $1,500 to $1,800.

The first of these witnesses mentioned, who had been supervisor, of the town, also testified: “ I think my property is assessed as high correspondingly as the other people on the roll; am assessed just as much proportionately as anybody.”

The appellants also insist that the court erred in finding that they acted with gross negligence in assessing the relators’ property.. Costs could not have been charged against them without such finding. Section 251 of the Tax Law (Laws of 1896, chap. 908) expressly provides that costs shall not be allowed against the officers whose proceedings are reviewed unless it appears to the court that they acted with gross negligence or in bad faith, or with malice, in making the-assessment complained of.

It is suggested that defendants in 1898 largely increased the-assessment against the relators’ property. The record shows that: the assessment against the relators’ property was $16,035 more in, 1898 than it was in 1896, but it also appears that the total assessment Of the town in 1898 was $50,965 more in 1898 than it was in 1896, so that the proportion that the relators’ assessment bore to the-entire assessment of the town in 1898 was considerably less than it was in previous years and less than it had been in more than twenty-years previous thereto. Defendants at the time of making the. assessment in 1898 did not have before them the record that- is now before us. They are farmers, without special knowledge of the value of railroads ;-they followed in substantially the footsteps of' their predecessors; the changes made by them were to the advantage of the relators; detailed information in regard to the value of the relators’ property was not given by the relators to the defendants on the day appointed by them for the review of their assessments. We think the finding that the defendants were guilty of gross negligence in making the assessments severe and unwarranted.

That part of the judgment and order reducing the relators’ assessment should be affirmed, and that part of the judgment and order allowing costs against the defendants as assessors of the town of Clinton should be reversed, without costs to either party in this court. ■

All concurred; Smith, J., not sitting.

That part of judgment and order reducing the relators’ assessment affirmed, and that part of judgment and order allowing costs against the defendants as assessors of the town of Clinton reversed, without costs to either party in this court.  