
    The People of the State of New York ex rel. Ellen P. Kellogg and Charles M. Camp, as Trustees under the Will of Charles Kellogg, Deceased, Respondents, A James L. Wells and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Assessment-for taxation of two trustees, one residing in Kelt) York and-the other in Kew Jersey— burden of proof as-to dll of the personal property having been assessed in the State of Seto ,York — the relator must show that he- toas injured— presumption that the assessment was proper-—what evidence may be introduced, before the court on the return to a certiorari— dll' questions of fact may be there , reheard. • . , ¡
    
    In a proceeding instituted by two testamentary trustees, one of whom was a resident of the city Of New York and the bitter a resident .of .the State of New Jersey, to review an assessment of - personal property held by thénvas trustees, if the trustees claim that the assessment was levied upon all of' the property held by . them jointly instead of upon one-half of such property as is authorized ■ by the statute (Laws of 1896, chap. 908, § 8), it is incumbent upon them to establish that fact by "affirmative proof.
    In the absence of such proof, it will he conclusively- presumed that the assessing officers -obeyed -the cornmand of the -statute and imposed the assessment only . upon one-half of the property held by the trustees.
    Where the only issue raised in sudh. a proceeding is whether the trustees held a sufficient amount of personal' property subject to taxation to warrant the assessment of §50,000 levied upon'them, it i's improper for the court to -exclude uhderthe relators’ -objection astipulation, signed-by the attorneys for the respec-' tive parties, to the effect that the trustee residing In the city of New York, if called as a witness, would testify that.at the time the assessment was imposed ■the trustees had “in their possession and control taxable property of the value of §100,000.” - . ' ‘ .
    
      Semble, that an' assessment for the .purpose of taxation cannot he review-ed unless the relator shows that he has been ih some-way injured by it,; that .in .the absence of ah allegation of such injury by the relator a proceeding to review the assessment should he dismissed. ■ . ,
    
      Semble, that a proceeding to review an assessment for the purpose of taxation, under the special statutory writ of certiorari, permits a red'eterminatiun of all questions of fact upon evidence taken in part-at least by the -Special 'Term .or under its direction; that such a proceeding is in effect a new hearing and that the whole subject is before the court, and that evidence bearing upon theques-, tian of the validity of the assessment may be introduced by either party * .
    Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of New York, 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 9th day of September, 1904, us amended by an order entered in said clerk’s office on the 6th day of October,. 1904, reducing an assessment of personal property for the purpose of taxation.
    
      George S. Coleman, for the appellants.
    
      Henry R. Ham, for the respondents.
   McLaughlin, J.:

This is a proceeding, to review an assessment for taxation for the year 1903 of personal property held by the relators as trustees under the will of Charles Kellogg, deceased. They were jointly assessed as such trustees, $50,000. One of the relators —- Mrs. Kellogg — prior to the assessment becoming final and within the time provided by statute, ajDjieared before the tax commissioners and submitted a verified statement to the effect that she was a resident of the State of New Jersey and not a resident of the State of New York, and that all of the securities and property of the estate held by herself and her cotrustee were in the State of New Jersey, and by reason thereof she asked that .the “ assessment for taxation be cancelled and annulled.” Her cotrustee did not join in the application to have the assessment canceled and annulled, nor was any complaint made by him or -her that the assessment of $50,000 was excessive. Her application was ineffectual and she thereupon sought, by writ of • certiorari, to review the action of the commissioners. The petition for the writ set out the facts as to Mrs. Kellogg appearing before the tax commissioners; the information she furnished to them as to her being a non-resident; that all of the property of said estate "was in the State of New Jersey; and also a statement to the effect that she offered to furnish any other evidence which the commissioners might require; that they did not require further evidence; that they denied her application to cancel said assessment, either in whole or in part; and that error was committed in not canceling said assessment or reducing the same by one-half “upon the ground that Ellen P. Kellogg, one of your petitioners and one of the two joint trustees of said estate is not a resident of the city, or State of New York; that the beneficiary of said trust is a non-resident .of the State of New York and that, none of the property of said trust-estate is within the State of New York.”

The return recites the terms of the will of Charles Kellogg, deceased, and the trusts created thereunder; that the will. was admitted to probate in the county of New York, and that an order in transfer'tax proceedings, made November 25, 1893, had valued the estate at $390,237.74, and of this sum. about "$285,000 was invested, in bonds and other taxable property and about $100,000 in stocks of corporations! The return further contained allegations to the effect that the relators had in their possession and control, at ■the time the assessment was made, at least the sum of $125,000, and that they, had not been pecuniarily injured or aggrieved by the assessment of $50,000.

It may be well doubted whether any. issue was raised by the petition and the return thereto, There, is no. allegation in the petition or the statement of any facts in! it or -the affidavit of the relator Kellogg attached .thereto to the effect "that the relators had been pecuniarily injured by the assessment or that they, ás such trustees, ■did. not hold $50,000 of personal property liable to be assessed for the purposes of taxation. I dó not understand that an assessment ■ for the purposes of taxation can he reviewed unless the relator, .shows .that he has been in some way injured by it. (People ex rel. United Verde Copper Co. v. Feitner, 54 App. Div. 217; affd., 165, N. Y. 645; People ex rel. Equitable Gas Light Co. v. Barker, 66 Hun, 21; affd., 137 N. Y. 544.) If I am correct in this, then it "wóuld seem to follow that on the matter coming on to be heard at •Special'Terin the proceeding should 'have been dismissed, Inas.much, however, as a motion- to dismiss was not made by the appellants, it would seem that it was assumed by both parties that some .issue was raised and that the burden of proof was upon the appellants to show that the assessment was valid. This assumption seems to follow- from what took place at Special Term. At the beginning •of the trial the attorney for the relators, without offering any proof whatever, moved, upon the petition-, return and writ, for the relief demanded, which- was that the assessment “be set aside, vacated or reduced.” Decision upon the motion was reserved and the respondents thereupon rested, relying evidently on -an alleged ■presumption that the Commissioners of. taxes and assessments had-assessed all of the personal property held by the relators as trustees — instead of one-half as they had a right to do under the statute — -at $50,000. But there was no such presumption ; on the contrary, the legal presumption was that the commissioners had performed their duty and had acted according to law in making the .assessment, .and the burden, was upon the relators to make it Otherwise appear, if such were the fact. In every case of an official act there is a presumption in favor of its legality and proof is always required to -overcome such presumption. (Wood v. Morehouse, 45 N. Y. 368; City of New York v. Streeter, 91 App. Div. 206; City of New York v. Vanderveer, Id. 303.) The property upon which the -assessment had been imposed was held by tlie relators jointly, and under section 8. of chapter 908 of the Laws of 1896, one-half of it was liable—one of the trustees being a resident of the city of New York — to be assessed in such city for the purposes of taxation. (People ex rel. Beaman v. Feitner, 168 N. Y. 360.) There was, •therefore, a presumption which, in the absence of proof, was conclusive that the assessment was legal; that the commissioners had ¡acted according to law and had imposed an assessment only upon •one-half of the property held by the relators.

But the commissioners did not see fit to rely upon this presump-. tian, which they well might have done, but instead sought to prove -that at the time the assessment was imposed the relators in fact held property of the value of $100,000 subject to taxation. This proof was offered in the fdrtn of a stipulation signed by the attorneys of the respective parties, and was to the effect that Mr. Camp, one of the trustees, if called as a witness, would testify that on the second Monday of January, 1903, he was a resident of the city of New York, and as such trustee had, on that day, the right of joint control of the property of the trusts created under the will of Charles Kellogg, deceased, and on that day the trustees of said estate had “in their possession and control taxable personal property of the value of $100,000.” This proof was excluded on objection of the attorney for the relators, to which an exception was taken.

It is! difficult to see upon what theory the proof was excluded. The. relators sought to review the assessment upon the ground that as trustees they did not hold $50,000 liable to be assessed for the purposes of taxation. The respondents in the return asserted that they had $125,000. The hearing was to determine, if anything, this, issue. . The stipulation, unless contradicted, would have settled and determined that fact, and, therefore, should have been received. It was determined by this court in People ex rel. Citizens’ Lighting. Co, v. Feitner (81 App. Div. 118) that a proceeding under the special statutory writ authorizing a review of assessments permits a redetermination of all questions of fact upon evidence taken in part, at least, by the Special Term nr under its direction. This case was followed in People ex rel. Bibb Manufacturing Co. v. Wells (84 App, Div. 330) and also in People ex rel. Knickerbocker Co. v. Wells (99 id. 455). In the latter case it was also held that a -cer-. tiorari to réview an assessment is in effect a new hearing and the whole subject is before, the court, and that evidence bearing upon the question of its validity may be introduced by either party. • If effect be given to the decision j then it follows that the stipulation should have been received in evidence..

At the conclusion of the hearing the court reduced the assessment-from $50,000 to $25,000, and in doing so, for the reasons already given, error was committed, and by reason thereof the order appealed from must be reversed and the writ quashed, with fifty dollars costs- and disbursements.

Yan Brunt, P, J., Ingraham and Laugíilin,. JJ., concurred; Patterson, J., concurred in result. , »

Order reversed and writ quashed,, with fifty dollars costs and disbursements. 
      Note.— The rest -qf the -cases of this term will he found in the next volume, 102 App, Div.— [Rep. ~
     