
    People ex rel. Rome, Watertown and Ogdensburgh Railroad Company, App’lt, v. Seth Jones, as Assessor, et al., etc., of the Town of Kendall, Respt’s. Same v. Same. Same v. Same.
    
      (Supreme Court, General Tenn, Fifth Department,
    
    
      Filed January, 1887)
    
    1. Taxes and assessments—Assessment roll—How verified—Effect OF VERIFICATION BEFORE NOTARY — HOW CORRECTED — LAWS 1830, CHAP. 264.
    Where it appeared by the return in certain certiorari proceedings that the assessment roll of 1883 of a certain town was sworn to in the first instance before a notary, and that, as thus sworn to, it was not delivered to the proper officer until September 11. That, on the 10th of October following, the assessors verified the said roll by affidavit sworn to before a justice of the peace of the town, and that subsequently said roll remained with the supervisor for fifteen days for public inspection, and the assessors caused notice to be published that the roll would remain wdth the supervisor “ for the period of fifteen days from the 1st day of September, open to public inspection, pursuant to section 9, chapter 264, of the Laws of 1880,” which notice was dated October 23,1883. On said 23d of October, and for fifteen days thereafter, the said roll remained with said supervisor open for public inspection: Held., that the affidavit made before the notary was a nullity. That by the later verification and the proceedings that followed it, all the requirements of the statute (Laws 1880, chapter 264) designed to protect the taxpayers were fully complied with. That prior to such action the assessors had not lost jurisdiction. That the statutory directions as to the time when the roll should be verified and left with the supervisor, etc., was not mandatory. That the statement in said notice as to how long the roll would remain open to inspection, was surplusage, and did no harm.
    2. Same—Costs on certiorari under Laws 1880, chap. 269.
    
      Held, that on denying the petition for a review of the assessment on certiorari, the special term has no discretion to withhold costs; costs must be awarded under Laws 1880, chapter 269, section 6.
    2. Same—Form of the verification of assessors—Laws 1885, chap. 201.
    Where the assessors, in their verification of the assessment roll, swore that they had estimated all real estate liable to taxation “ at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor,” while the form of oath required by Laws 1885, chapter 201, was that they had estimated the value thereof at the sums which a majority of the assessors had decided to be the full value thereof: Heal, that the affidavit was not defective under said law.
    Appeal from orders of special term in Erie county, denying the prayer of the petition upon the merits in the first and second proceeding above entitled, and dismissing the petition and writ upon the merits in the third proceeding above entitled, with costs to the respondents in each case.
    
      Edward B. Wynn, for relator and app’lt; John Cunneen, for resp’ts.
   Smith, P. J.

These are proceedings by certiorari. under chapter 269 of the Laws of 1880, to review the assessments made by the authorities of the town of Kendall, Orleans county, upon the property of the relator in said town, in the years 1883, 1884 and 1885, respectively.

As to the assessments in 1883 and 1884, the evidence in the cases now before us is conceded by the learned counsel for the appellant to be almost identical with that given on behalf of his client in the cases of The People v. Haupt, The People v. Smoyer, (24 N. Y. Week. Dig., 195); The People v. Hicks, 40 Hun, 598, (2 N. Y. State Rep., 294); The People v. Eddy, and The People v. Bancroft decided by this court in June last, and for that reason he very properly declines to argue the assessments of 1883 and 1884 upon their merits, as the points involved are identical with those decided in the cases above referred to.

It is contended, however, by the appellant’s counsel that an irregularity exists in respect to the assessment of 1883, which is fatal to its validity. The supposed irregularity consists in the alleged failure of the assessors to comply with certain provisions of section 9, chapter 269 of the Laws of 1880, in respect to their duties. That section requires that all assessment rolls, when finally completed and verified by the assessoi’s, shall, in towns, be delivered to the towxx clerk, or other officer to whom they may be required by law to be delivered, on or before the first day of September1, thex-e to remain for a pei’iod of fifteen days, for public ixispection. Public notice thereof is to be given, and it is provided that a certioxari shall not be granted uxxder the act, unless it is applied for withixx fifteen days after the completion and delivery of the assessment axxd xxotice thereof, axxd as the law then stood, the affidavit of verification was required to be made before a justice of the peace of the towxx. Laws 1851, chap. 176, § 8.

It appears by the return that the assessment roll of 1883 was sworn to, in the first instance before the notary, and that as thus sworn to it was xxot delivex’ed to the supervisor of the town who was the proper officer to receive the same, (1 R. S., 394, 27), until the eleventh day of September. It also appears that on the tenth of October following, the assessors verified the said roll by affidavit sworn to before a justice óf the peace of the town and that subsequently said roll remained with the supervisor for fifteexx days for public ixispection, axxd the assessors caused notice to be published that the roll would remain with the supervisor “for the period of fifteen days from the first day of September, open to public inspection, pursuant to section 9, chapter 264 of the Laws of 1880.” Said notice was dated the 23d day of October, 1883. The return states that the notice was posted on that day, “ from which date and for fifteen days thereafter the said roll remained with said supervisor open for public inspection as aforesaid.”

The affidavit made before a notary was doubtless irregular, such affidavit being then required to be made before a justice of the town. The statute authorizing it to be made before any officer of the county authorized to administer oaths was not passed till the following year (Laws of 1884, chap. 57). But we think the irregularity was cured by the subsequent affidavit, and the action thereafter taken in respect to the roll thus properly verified. The statutory direction as to the time when the roll should be verified and left with the supervisor, and notice thereof should be posted, was . directory and not mandatory. Parish v. Golden, 35 N. Y., 462; Rawson v. Van Riper, (1 T. & C. 370;) Witheril v. Mosher, 9 Hun, 412; Rome, W. and O. R. R. Co. v. Smith, 39 Hun, 332, 335, 6. By the later verification and the proceedings that followed, all the requirements of the statute designed to protect the taxpayers were fully complied with. Prior to such action the assessors had not lost jurisdiction, as in The People v. Forest (96 N. Y., 544), cited by the appellant’s counsel. As the affidavit made before the notary was a nullity, the roll had not been completed (People v. Suffern, 68 N. Y., 321), and the subsequent action of the assessors was only what was necessary to its completion. Nor is the case like that of Westfall v. Preston (49 N. Y., 352), also cited by the counsel, where an affidavit of the assessors verifying the roll, made prior to the time fixed by statute for its final review and correction, was held to be a nullity.

We have not overlooked the circumstance that the notice which was posted and published on the twenty-third of October stated that the assessment-roll would remain with the supervisor “for the period of fifteen days from the first day of September.”

We do not think that statement rendered the notice invalid. It was not a necessary part of the notice. All that the notice was required to state was that the roll had been finally completed, the officer to whom it had been delivered, and the place where it would be open to public inspection (Laws 1880, chap. 269). It was not required to state how long it would remain open to inspection. The statement upon that point was surplusage, and it did no harm unless it misled the appellant, of which there is no evidence.

For these reasons we think the prayer of the petition in respect to the assessment of 1883 was properly denied.

The granting of costs against the petitioner on that denial seems a hardship. The writ of certiorari was allowed on the twelfth of September, and, at that time, the proceedings on the part of the assessors were irregular, and if they had not been aided by the subsequent action of those officers the prayer of the petitioner must have been granted. But the special term had no discretion to withhold costs on denying the prayer of the petition. The statute is imperative that in such case costs shall be awarded against the petitioner (Laws 1880, chap. 269, § 6).

The order must, therefore, be affirmed as to costs as well as upon the merits.

No irregularity is suggested by the appellant’s counsel in respect to the assessment of 1884.

The only question raised in respect to the assessment of 1885, relates to the form of the affidavit verifying the roll. Prior to May, 1885, the statute prescribed that the assessors should estimate all real and personal estate liable to taxation “at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor” (1 R. S. 393, § 17, as amended by Laws 1851, c. 176, § 3). And the assessors were required to state in their affidavit verifying the roll that they had estimated the value of the real estate set down on the roll (with an exception not now important), at the sums which a majority of the assessors decided to be the full “and true” value thereof, “ and at which they would appraise the same in payment of a just debt due from a solvent debtor. ” In respect to personal property, they were only required to state that they had assessed it at the full and true value thereof, according to their best judgment and belief (Laws 1851, chap 176, § 8, as amended by Laws 1884, chap. 57).

By an act passed on the 1st day of May, 1885, and which then took effect, the form of the oath was changed so that it was only necessary for the assessors to state, in respect to real estate, that they had estimated the value thereof at the sums which a majority of the assessors had decided to be the full value thereof (L. 1885, 0. 201); but no change was made in the form of the oath as to personal property, nor as to the basis upon which the value of either real or personal property should be estimated in making the roll.

It appears by the record book that in the present instance, the assessors, on the 28th of August, 1885, made and annexed to the roll, an affidavit in the form prescribed by the earlier statute, and on the 17th of October, 1885, they made and annexed to the roll an affidavit in the form prescribed by the act of 1885.

The appellant’s counsel contends that the verification is fatally defective. The same question arose in the cases of this same relator against Smith, and the same against Phippany (39 Hun, 332), which were actions brought by the present relator to restrain the authorities of the town of Kendall from collecting the tax imposed by the assessment now under review. The supreme court at general term in the first department, held that the first affidavit was not defective, it being a substantial compliance with the act of 1885, but that if it was defective or irregular, the assessors had the authority to correct it or supply its defects, and comply with the act of 1885, at the time when the last oath was taken by them, and by taking that oath they had done so. Those views were expressed by Mr. Justice Daniels in his opinion, and we understand from the report of the case that they were concurred in by his associates, although they stated another ground also leading to the same result. The court of appeals affirmed the orders of the general term in those cases without passing upon the validity of the original affidavits attached to the assessment rolls. 101 N. Y., 684.

The adjudication of the general term upon the point now in issue before us, therefore, stands unreversed, and we accept it as decisive of the question. At the same time we deem it proper to say that treating the question as an open one, we are clearly of the opinion that the order of the special term now under review is right, for the reason, if for no other, that if the first affidavit was defective, the defect was cured by the second one. We concur in the views expressed upon that point by Mr. Justice Lewis at special term.

The orders appealed from should be affirmed with costs of the appeal, in one case only, to the respondents.

Barker, Haight and Bradley, J. J., concur.  