
    The People of the State of New York, ex rel. People's Trust Company, as Executor of Cornelius N. Hoagland, Appellant, v. Thomas L. Feitner and Others, Commissioners of Taxes and Assessments of the City of New York, Respondents.
    
      Taxation of personalty — inequality of assessment is not a ground of objection in New York city — nor that mortgage bonds m'e assessed at par and real property at seventy per cent of its value — nor a belief that the obligors are insolvent — nor that other personalty is not taxed.
    
    Under section 906 of the Greater New York charter (Laws of 1897, chap. 378) an assessment upon personal property levied by the city of New York can.be reviewed by certiorari only where it is illegal- or erroneous by reason of overvaluation, and not where it is erroneous by reason of inequality.
    The owner of bonds secured by mortgages upon real property is not entitled .to-complain because the bonds are assessed at their face value while the mortgaged real estate is only assessed at seventy per cent of its actual value.
    An affidavit submitted to the assessors by such owner, in which he states that he verily believes that more than one-half of the obligors named in the bonds are not responsible for the amount thereof, does not entitle him to a reduction of his assessment where ho further proof is given in support of his assertion, and it does not appear that the value of the mortgaged premises is inadequate to-secure the face of the bonds.
    Semble, that the failure to tax similar securities, held by other persons, would not necessarily indicate any inequality of assessment in the absence of proof that their existence was known to the assessors. *
    Appeal by the relator, the People’s Trust Company, as executor of Cornelius N. Hoagland, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 31st day of January, 1900, dismissing a .writ of certiorari issued to review the action of the respondents in assessing, for the purposes of taxation, personal property held by the relator as executor, etc., of Cornelius H. •Hoagland, deceased.
    
      George W. Wingate, for the appellant.
    
      George S. Coleman, for the respondents.
   Goodrich, P. J.:

The relator, as the executor of the last will of Cornelius H. Hoagland, presented a petition to the Special Term for a writ of certiorari to review an assessment, setting out that it was aggrieved by the action of the commissioners of taxes and assessments of the city of Hew Pork in assessing the personal property held by it as such executor at $522,000. The value of the personal property of the estate was itemized in an affidavit accompanying the petition, as follows:

Hotes........ $181,940 00
Bonds secured by mortgages............. 309,800 00
Cash.........'.................................. 11,181 94
Bonds unsecured................................ 20,000 00
$522,921 94

The assessment complained of was $309,800, which is the amount of the item, “ Bonds secured by mortgages, $309,800.” The petition states the grounds of objection as follows :

1. The valuation is the face value of the bonds.

2. The valuation is higher than it justly should have been, and is a higher proportionate value than other property has been valued at in the same roll by the board of taxes and assessments, in this, that the valuation of the tax upon real estate throughout the said borough contained in said roll is not to exceed seventy per cent of the market value thereof.

3. The bonds have been valued as bonds made by a solvent debtor and not as mortgages, whereas, in fact, not half the obligors of said bonds are responsible for the amount thereof.

4. The bonds and mortgages in the borough of Brooklyn^ which are held by other trust companies and by individuals, have not been assessed.

Briefly, these objections raise two questions, as -to overvaluation- and inequality. Assuming that the inequality is sufficiently alleged, the question arises whether that is a grievance which this court may review. Sections 250 and 251 of the General Tax Law (Chap. 908, Laws of 1896) provide for a review by certiorari, on the petition of any person aggrieved, setting forth that the valuation is erroneous by reason of overvaluation or inequality, but the Greater Hew York charter (Laws of 1897, chap. 378, § 906) provides for a review in the city of Hew York “only on the grounds * * * that the assessment is illegal - * * * or is erroneous by reason of over valuation or, in case of real estate, that the same is erroneous by' reason of inequality.”

As between the General Tax Law and the charter,.the latter'must control. The former was passed in 1896, the latter in 1897. Upon the ground of clearly expressed intention, it is obvious-.that the terms of a later special act - must control those' of .a- prior general one; and that where they are positively repugnant, not merely cumulative or auxiliary, the former must répeal the latter to . the extent of such repugnancy and within the limits assigned' to the operation of the special law.” (Endlich Interp. Stat. § 216.)

In Rich v. Keyser (54 Penn. St. 86), in speaking of the effect of a later statute'over a previous one, it was said (p. 89): “ The words of a statute, when unambiguous, are the true guide to the legislative will. That they differ from the words of a prior statute on the same subject is an intimation that.they are to have a different and not the same construction, for it is as legitimate a use of the legislative poAver to alter prior statutes as to displace the common law.”

This disposes of the question as to the only grounds upon which the assessment of personal property in the city of Hew York may . be reviewed, viz., that the assessment is illegal or is erroneous by reason of overvaluation. Inequality of assessment is expressly confined to real estate.

It is. not claimed that the assessment is illegal, but that it is erroneous by reason of overvaluation. For the purpose of considering this question- as to personal estate, we cannot resort to other assessments on the roll, as there are none pointed out in the petition.

It may be said in passing that even under the General Tax Law the person aggrieved must show that application has been made in due time to the proper officers to correct such assessment. The petition merely shows that the applicant applied to the tax commissioners for a reduction of the assessment, and filed with them an affidavit of Mr. Johnson, secretary of the relator, in which it was stated that the executor “ protests against any tax being imposed upon said $809,800 upon the ground that no tax is imposed upon similar securities held by other trust companies and individuals. If the said account is to be considered as taxable as ‘ bonds made by a solvent debtor ’ a deduction of over one-half should be made therefrom, as I verily believe that more than half of the obligors are not responsible for the amount of such bonds.” This is hardly sufficient evidence .to require any action of the assessors.

Even if the question of inequality were open to review by virtue of the charter, the failure to tax similar securities held by other persons does not necessarily indicate any inequality of taxation which is available to the petitioner. It may be that the existence of such other securities was not discovered by the assessors. If “bonds secured by mortgages” in one part of the roll had appeared to have been taxed at their face and similar bonds in another part of the roll at one-half their face value, inequality might be predicated. It cannot be predicated of an omission to tax securities not upon the roll and not shown to have been known to the assessors.

The other suggestion of the protest, that a deduction should be made from the face value of the bonds, because the affiant verily believed that more than one-half of the obligors were not responsible for the amount of such bonds, can hardly be deemed sufficient evidence to establish the claim. The bonds and mortgages are, doubtless, in the possession of the'applicant, and far better proof than the bare belief of the affiant could have been produced if the fact existed. It is a mere conclusion, and, as such, insufficient to establish the fact.

Thus, we have left only to consider the main contention, that the assessment of the bonds secured by mortgage at their face value is erroneous by reason of overvaluation. The bonds in question are stated in Mr. Johnson’s affidavit to be secured by mortgages. It does not appear that the va'ue of the premises covered by the mortgages is inadequate to secure the face of the bonds. No foundation is laid for a contention that the bonds are not collectible or that any loss will result to the estate, even from the utter insolvency of all' the obligors.

Neither can the relator justly claim that because real estate is assessed at seventy per cent of its actual value, the same proportion must be applied to the bonds and mortgages. Of common knowledge, investment loans on mortgages on real estate are never intended to amount- to the value of the real estate. There is always to he a margin which secures the .payment of the face value of the bond. For this reason, it cannot be said that because the mortgaged premises are assessed-at seventy per cent,-the bond secured by a mortgage should also be assessed in the same proportion.

The order should be affirmed.

All concurred, except Jenks, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.  