
    The People of the State of New York ex rel. The Rochester Lamp Company, Respondent, v. Thomas L. Feitner and Others, as Commissioners of Taxes and Assessments of the City of New York, and Patrick J. Scully, as Clerk of the Municipal Assembly, Appellants.
    
      .Tax—review of, by certiorari—the return is conclusive — duty of a corporation applying for a reduction to take the initiative—appeal from an order of reference.
    
    The allegations contained in the return to a writ of certiorari must, for the purpose of the certiorari proceeding, be taken as true; if they are untrue the relator’s remedy is by an action for a false return.
    Section 898 of the Greater New York charter (Laws of 1897, chap. 378), requiring the board of taxes and assessments to hear all applications of corporations for the revision and cancellation of assessments, and section 895 of the charter, providing that where an application.is made to revise, reduce and cancel an ■assessment of personal property the applicant shall be examined under oath by a commissioner of taxes, contemplate that a corporation which claims that its assessment for personalty is excessive will take the initiative in bringing the matter to a hearing before the board of tax commissioners, and will present itself, its agents or officers, in order that the required oath may be administered and the evidence upon the merits of the application can be taken and a record of the same preserved.
    Where a corporation files with the commissioners an application for a revision of its personal assessment upon the ground that it is excessive, and takes no steps to secure a hearing before the board, and offers no testimony concerning its claim, the court has no jurisdiction to issue a writ of certiorari to review the assessment.
    Where the court issues such a writ of certiorari and subsequently grants the relator’s motion for an order of reference in the proceeding, an appeal will lie from the order of reference.
    
      Semble, that the order of reference is not appealable if the court has authority to grant the writ.
    Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the ■county of New York on the 16th day of July, 1901, granting the relator’s motion for the appointment of a referee in certiorari proceedings instituted to review the assessment of the relator’s property for taxes for the year 1900.
    
      
      James M. Ward, for the appellants.
    
      Osear Wagner, for the respondent.
   Hatch, J.:

The assessment sought to be reviewed in this proceeding was made against the capital and surplus of the respondent, under the provisions of the Tax Law (Laws of 1896, chap. 908). The amount was first fixed at $100,000, but on application to the commissioners it was by them reduced to the sum of $25,000. The application filed with the commissioners put the total gross assets* including real estate, at $9,000, and went on to state that the company had no real estate; that the capital stock paid in, or secured to be paid in, was $100,000, and that the indebtedness of the company amounted to $73,589.56. The application was made on the hlanlc form provided for such purpose; and in answer to a request therein contained, to state the actual value of the stock of the company and to give the facts under oath which would justify such estimate of that value, the following statement was made: The selling price of the assets of the company in this State and elsewhere would not exceed the sum of $98,000, a considerable portion of the capital stock consisting of patents, designs, etc. The indebtedness of the company is apprxomately the sum of $73,589.56, and the capital stock of the company is, therefore, estimated at 25 per cent.”

We understand it to be conceded that upon this statement the commissioners were justified in assessing the personal property of the relator at the sum of $25,000; but the relator claims that the statement was and is misleading, and that the commissioners were guilty of error in not granting to it a hearing upon its application thereafter made. It appears in the moving papers that counsel for the relator applied at various times to the commissioners for leave to examine the books, which it contends were required by law to be kept open, for the purpose of ascertaining how the relator’s property had been assessed, fearing that the statement would prove misleading and result in an erroneous assessment, but that such inspection was refused. On or about the 18th day of April, 1900, the relator filed with the commissioners an application, as provided by the Greater Hew York charter (Laws of 1897, chap. 378, § 895), for a revision of the assessment upon the ground that the same was excessive and erroneous. No notice of this application was taken, except that the secretary of the board stated that the measures taken and papers filed would enable the relator to protect itself by certiorari proceedings.

The relator contends that this application should have been granted, and sued out a writ of certiorari for the purpose of such review, and upon the return of such writ a reference was ordered to-take and report to the court the evidence with findings of fact and conclusions of law as to the several matters in issue. From such order this appeal is taken.

The return to the writ made by the commissioners traverses the averment of the petition as to the denial of an opportunity to-inspect the books, and the return avers in terms that the assessment was fixed and that notice was given that the books containing the-assessment were open for inspection as required by law. Upon this subject, therefore, the return is conclusive and must be accepted as true. (People ex rel. Press Publishing Co. v. Martin, 142 N. Y. 228; People ex rel. Gage v. Lohnas, 54 Hun, 604.) If, in fact, the averments of the return are untrue in this respect, the relator’s, remedy is by action for a false return. (People ex rel. Sims v Fire Comrs., 73 N. Y. 437.)

The petition does not aver that the relator ever appeared before-the board of tax commissioners and offered to be sworn, or to present testimony showing that the statement as'filed by them was erroneous in any respect or that the tax which was levied was excessive. By virtue of the provisions of section 898 of the Greater New York charter, the board of taxes and assessments is required to hear at their main office all applications of corporations for revision and cancellation of assessments. It is evident, however, that the board is not required to do more than to give notice that, the assessment roll has been completed and that the books are open. The law imposes the duty upon the corporation assessed to take the initative in bringing the matter to a hearing before the board of tax commissioners, and by section 895 of the charter, where an application is made to revise, reduce or cancel an assessed valuation of personal property, it is required that the applicant shall be examined-under oath by a commissioner of taxes. This evidently contemplates that the person or' corporation must present himself, its agents or officers, when the required oath may be administered and the evidence upon the merits of the application can be taken and a record of the same preserved. Ho such steps were taken in this case. The relator, it is true, sent a notice, in the form of a letter, bearing date April 18,1900, making application for a revision of the personal tax assessed against it for the year 1900, upon the ground that the tax assessment as made was excessive, and with this notice the relator contented itself and took no steps to secure a hearing before the board, nor did it offer any testimony whatever concerning the claim, or offer to be sworn in respect thereto. Consequently, there was never at any time anything before the board upon which it could act, aside from the report which had been previously furnished by the relator; and it is conceded that their action upon this report justified the tax in the amount of the assessment. They were authorized and required to act, and their conclusion was a judicial determination, and conclusive as to the amount of the tax, in the absence of all other proof. (People ex rel. McShane Mfg. Co. v. Barker, 23 App. Div. 530; affd. on appeal, 155 N. Y. 665.)

The relator having failed to avail itself of the opportunity which the law provides to secure the correction of its assessment, has now no standing to have a review of the same, and had none when this writ was obtained. (People ex rel. Sutphen v. Feitner, 45 App. Div. 542.) In that case the application was for a writ of certiorari to review an assessment on real estate, where the application for revision, when made to the commissioners, must be in writing, stating the ground of objection thereto (charter of city of Hew York, § 895), which is different from what is required to correct an assessment of personal tax; but the reasoning of that case with respect to the necessity of taking some steps before the commissioners and supplementing the same by proof, has precise application to the question now under consideration, and is authoritative upon the subject. It is stated by the petitioner that the secretary of the board informed it that the assessment had not been fixed on the 6th day of April, 1900, and that the tax against the petitioner and other corporations would not be made out until May 1, 1900. The return of the commissioners is conclusive upon this subject. If the board in fact made the assessment and deposited the books for the inspection of the public, as the return says they did, any statement made by the secretary, however erroneous, could not have the effect of invalidating such act.

As to the time when it is said that the secretary stated that the assessment would be finally made up, it was correct as a statement of the law, as in effect it was saying that on Hay 1, 1900, the books would be closed, and such is the requirement of the law.

As there exists no basis which entitled the relator to review this assessment, there was no jurisdiction to issue the writ. It is said that the order of reference is not appealable, and reliance is placed upon People ex rel. Trowbridge v. McNamara (18 App. Div. 17). In that case all of the. preliminary steps had been taken by the relator which entitled him to review the assessment by writ of certiorari, and the court held that under such circumstances an appeal would not lie from the order of reference, for the reason that it was a mere interlocutory order and that the relator therein was entitled by virtue of his writ to contest the correctness of the assessment under it. But where, as in the present case, the writ was issued without jurisdiction, the court was not vested with any authority to proceed thereunder in any form, but determining that it had, an appeal lies from the determination, no matter in what form it is expressed.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and the writ dismissed, with fifty dollars costs.

Van Bbunt, P. J., Patterson, Ingbaham and Latohlín, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and writ dismissed, with fifty dollars costs.  