
    The People ex rel. The First National Bank of Franklinville and Jason D. Case, App’lts, v. Charles D. Button et al., Assessors, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Taxes—Bank surplus—Estoppel.
    The assessors made an assessment upon the surplus of the bank of $16,-000. Relator Case went before them and objected thereto, but refused to be sworn or give information as to the value of the shares of stock. Notwithstanding this the assessors made a reduction and, at the request of Case, distributed the reduced amount among, and assessed it to, the individual stockholders. Held, that the bank had no pecuniary or other iuterest in this proceeding to review the assessment, as the erroneous assessment was taken from the rolls before the writ was made, and that Case was estopped to deny that the distribution and re assessment was unlawful, illegal or erroneous, as it was made at his request.
    Appeal by the relators from an order and judgment entered in Cattaraugus county, March 23,1891, dismissing a writ of certiorari, which had been issued to review an alleged erroneous assessment against the property of the relators.
    TP. W. Waring, for app’lts ; G. JS. Spring, for resp’ts.
   Macomber, J.

The writ of certiorari in this proceeding was issued on the 11th day of September, 1890, for the purpose of reviewing an alleged erroneous,' illegal and unequal assessment upon the property of the relators, made in the year 1890, by the defendants, who are assessors of the town of Franklinville, in the ■county of Cattaraugus.

The petition for the writ was in proper form to bring up for review every-question pertaining to any illegal, erroneous or unequal assessment made by the assessors in this instance. A return was made to the writ issued upon the petition, which contained -denials of certain allegations in the petition, and set forth affirmative matters tending to exonerate the assessors from the charges made against them, and to show that the writ was improperly issued. . .

Tile relator, The. First .National Bank of Franklinville, is a banking corporation organized under the laws of the United States, having a capital stock of 550 shares of the par value of $100 each, of which stock the. relator, Jason D. Case, owned seventy-five shares. At the time of the assessment this bank had an accumulated surplus of $22,000.00. The actual value of each share of stock was $140. Upon the review day, the relators appeared by Jason D. Case for himself and for the bank, and claimed that a certain assessment of $16,000 made against the property of the relators was an overvaluation, whereupon the same was reduced to the sum of $13,000. The relator, Case, was asked by the assessors at this time to be sworn touching the value of the shares of stock of the bank, and asked to impart any information possessed by him pertaining ,to the property of the bank and of its value, including the value of his own .stock in such bank. This he refused to do. Certain other reductions were made in behalf of two alleged stockholders, which it is not necessary to mention in detail, because they have no bearing upon the questions involved in this appeal. It appears that the bank had been compelled to take certain real estate which it had held as security for indebtedness, and this had been reckoned by the assessors as •a part of the surplus. When the attention of the assessors was called to the matter, they reduced such assessment of personal property against the bank from $13,000 to $9,500. At the request of the relator, Case, this reduced amount, namely, $9,500 was, by the assessors, distributed among and assessed upon the individual shareholders of the bank. This request was made, and the action taken thereunder was had, before the writ in this proceeding was issued or applied for. It appears affirmatively that, before the writ had been granted, the relator, Case, knew of such reductions, and of such compliance with his wishes and directions.

Under the evidence taken before the referee and returned to-the court, there is not left standing for the relators any claim which was set forth' in their petition relating to the question of unequal assessments.

By § 6, chap. 536 of the Laws of 1857, it is provided that, “ if any person shall refuse to answer any question as to the value of his real or personal estate or the amount thereof, or present sufficient supplementary evidence under oath to justify a reduction, the assessors shall not reduce the value of such real or personal estate.”

There is in the case before us an entire absence of any evidence-upon the branch of the case relating to unequal' assessments. The bank, speaking through its cashier and financial officer, Case, claimed that the assessment of the surplus should have been distributed among the stockholders and not laid upon the corporation. The assessors acted in accordance with this request.

No claim is made in behalf of the respondents that the original assessment upon the surplus against the bank was authorized. But it is urged that, inasmuch as the correction was made at the-request of the relators by taking the assessment from the bank and placing it upon the individual shareholders of the stock, the-original error was corrected, and that the relators, therefore, have no reason to complain. In this contention we think the counsel is correct

By § 5219 of the federal act (13 U. S. Stats, at Large, 112),. the valuation of the shares as personal property may be made-by the assessors against the individual shareholders, though they may not be made against the bank itself. See, also, Apgar v. Hayward, 110 N. Y., 225; 18 St. Rep., 169; Van Allen v. Assessors, 3 Wall., 573; Whitney v. Thomas, 23 N. Y., 281; National Bank of Chemung v. City of Elmira, 53 id., 49; McLean v. Jephson, 123 id., 142; 33 St. Rep., 490; chap. 409 of the Laws of 1882, §, 312.

In conclusion, it appears to us, therefore: First, that the relator, the bank, has no pecuniary or other interest in this case, for the reason that the erroneous assessment made against its surplus was taken from the rolls of the assessors before the application for the writ was made, and this act was done in pursuance of the objections made to the original assessment by its financial officer; and, secondly, that the relator, Jason D. Case, is estopped to deny that the distribution and reassessment of the surplus capital stock of the bank among the stockholders was unlawful, illegal or erroneous, for the reason that such distribution was made at his special instance and request

The rights of no other stockholder of the bank are involved in this appeal.

It follows, therefore, that the order and judgment appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  