
    The People, ex rel. The Mohawk and Malone Railway Company, Relator, v. Samuel Garmon et al., as Assessors of the Town of Webb, Herkimer County, New York, Respondents.
    (Supreme Court, Oneida Special Term,
    March, 1901.)
    Tax — Waiver of defects in roll — Title of assessors not assailable collaterally — Review of valuation.
    Where a railroad corporation appears generally before town assessors on “grievance day” and objects to the assessed valuation of its realty as excessive and unequal, succeeds in procuring its reduction to some extent and makes no objection to the form or details of the assessment-roll, it is precluded, upon a subsequent review by certiorari, from objecting to irregularities in the assessment-roll, even though they might have been fatal if objected to in the first instance.
    In the proceeding before the town assessors their title to office cannot be tried or assailed successfully by the railroad corporation.
    Where the railroad corporation duly objects before the assessors to the valuation, the fact that its attorney in his affidavit laid down an erroneous rule of law as governing the assessment, does not preclude the court from reviewing on the merits the .assessors’ determination of value.
    The relator sued out a writ of certiorari for tbe purpose of having reviewed its assessment by the assessors of the above-mentioned town for the year 1900, <and which assessment was finally made at the sum of $199,750. It attacks such assessment because of the ¡alleged facts that two of the assessors making the same were not legally made assessors; that there were various defects in the form of the assessment-roll and in the verification and filing thereof; and also upon the ground that the valuation placed upon its real property so assessed as aforesaid was excessive and unequal as compared with other assessed valuations in the town.
    The defendants having duly filed their return to said writ, upon their part- ask that the same he dismissed upon the grounds that under the petition and return there is no issue of -fact to be tried as to the propriety of the valuation placed upon the relator’s property and that all of the other questions presented by tbe petition and writ are of law which should be decided in their favor.
    
      O. E. Snyder, for relator.
    O. D. Adams, for respondents.
   Hiscock, J.

Some of the objections made by the relator to the assessment of its property in question and which may be designated as technical as distinguished from the question of valuation, may be easily disposed of.

It is too clear to require argument or citation that the question whether some of the defendants were duly elected or appointed assessors cannot be raised in this proceeding. There is no doubt that they were at least de facto assessors and that the relator appeared before them as such in relation to this assessment, and their title to office cannot be tried herein.

Relator seems to claim in its petition that the assessment-roll made up and exhibited by defendants upon grievance day, and by them completed and finished August 21, 1900, iwas never filed with the town clerk of the town of Webb, but that the defendants on the 27th of September, 1900, filed with the said town clerk what purported to be an assessment-roll of said town and which is not the one that was completed on or before August first, and not the one that was submitted by defendants to relator and other taxpayers on the third Tuesday of August, 1900. These allegations in the petition are upon information and belief, and relator’s counsel upon the argument has not made clear just what he means by them or how far he relies upon them. Suffice to say that the defendants challenge their correctness and by affirmative statements in their return allege that the roll made up by them on or before August 1, 1900, and submitted for public inspection and completed on or about August twenty-first was duly verified and filed with the town clerk of the town of Webb and otherwise as directed by section 22 of the Tax Law. If relator intends to rely upon its allegations upon this point there is an issue of fact which requires the taking of evidence and which will be sent to a reference.

The claim that the assessment-roll was not properly verified, assuming such claim to be well founded, has, I think, been disposed of by the subsequent conduct of the assessors. On or about October 22, 1900, they made and attached to said assessment-roll while still on file in the town clerk’s office a second oath, which is not criticised. This was sufficient to obviate any difficulties arising from defects in the first one. People ex rel. R., W. & O. R. R. Co. v. Jones, 106 N. Y. 330.

Relator criticises in many respects the form of the assessment-roll finally made up by defendants. It claims that said assessment-roll does not comply with section 21 of the Tax Law, in that it does not contain the name of the relator in the first column of the assessment-roll, but that initials are used in part by the defendants to indicate said petitioner’s name; that there is no description given of the land attempted to be assessed and no statement of the quantity of real property taxable to relator; that generally there is no such arrangement of columns as is required. While some of the details in the form of the assessment-roll criticised by relator, such as the use of the initials “ R. R. Go.” for “ Railroad Company ” in the name of the relator and the arrangement of the columns are immaterial and can easily be disregarded, there is no question but what there is much room for the general complaint made by relator in regard to the form of the assessment-roll. While, as claimed by defendants’ attorney, public policy requires that every one should be assessed and pay his just share of taxes and not escape therefrom upon mere quibbles, the taxpayer, upon the other hand, is entitled to have the municipality which sees to impose a burden upon his property through its officers, comply with the requirements of the statute in an intelligent and business-like manner. Defendants have not done this in this case. The assessment-roll which they have made up does not come anywhere near complying with the form pointed out by the statute. As stated above, some of the variations found in it are doubtless immaterial and can be disregarded and the intention of the assessors spelled out without much difficulty. The purported description of relator’s land simply as $ 34-J miles,” presents the most serious question in respect to the validity of the assessment, and it may be 'doubted whether the court could, if forced to that issue, sustain the assessment by interpreting those words as a compliance with that provision of the statute which required the assessors “ to set down in the second column the quantity of real property taxable to each person with a statement thereof in such form as the commissioners of taxes shall prescribe.” I have, however, reached the conclusion in this case that relator by its conduct upon “ grievance day ” has submitted itself to the jurisdiction of the defendants and cannot now raise the questions which it seeks to in regard to the validity of the assessment-roll upon this and the other defects therein already mentioned.

Eelator upon the day in question appeared before the assessors by its attorney and agents and objected to the valuation placed upon its real estate as excessive and improper and also suggested that some of the assessors had not been legally elected or appointed as such. It raised none of the other objections to the validity of the assessment and especially with reference to its form, here urged. After it had thus appeared before the assessors and objected tó the amount of its assessment the former did in fact reduce the assessment upon its property in said town by the amount of about $10,000. People ex rel. Telegraph Co. v. Commissioners of Taxes, 99 N. Y. 254-257, is some authority for the proposition that the relator should upon grievance day have made objection to any irregularities in its assessment upon which it desired to rely in certiorari proceedings.

But independent of that contention urged by defendants, I think ■ that relator by' its general appearance before the assessors, and by seeking to have the amount of its assessment reduced, which to a small extent was done' by the assessors, waived any objection to the assessment-roll in the respects discussed. The failure of the assessors to properly state the quantity of relator’s real estate was at most an irregularity. Albany & W. S. R. R. Co. v. Town of Canaan, 16 Barb. 245, 250.

The relator evidently understood what the meaning and intent of the assessment-roll was. When it appeared before the assessors and tried out with them the question of the propriety of the valuation, which they had placed upon its real' estate, it waived any objections to the manner of setting forth its name or the quantity of its land. Matter of McLean, 138 N. Y. 158; Hilton v. Fonda, 86 id. 340.

It is true that the relator in the affidavit submitted by its attorney did suggest that if the assessors did not reduce the valuation of its real estate as requested, it might raise the question of the validity of their title to office. It may be questionable how far relator could try out the question of valuation upon the merits and at the same time reserve the technical objections to the validity, of the assessment, but even if it did reserve its right to raise the one suggested, it did not raise or attempt to reserve in any manner objections going to the form of the assessment-roll heretofore commented upon.

Disposing of these questions I am brought to the demand by relator that the valuation of its real estate should be reduced. As above stated, defendants insist that there is no issue presented in regard to the correctness of the valuation already placed by defendants upon the real estate and that therefore there is no occasion for a reference or further proceedings. This contention . of defendants is based upon the fact that at the time when relator’s attorney appeared before the assessors and objected to the amount of the assessment he set forth in his affidavit what he claimed was the rule of law by which the assessors should be governed in valuing relator’s real estate. Defendants say that relator is now to-be held to the argument contained in such rule and that that rule being incorrect it cannot have any correction upon any other-theory. This strikes me as being rather too narrow -a view. Relator did in general terms ob ject to the valuation of its real estate, and while in support of that objection it may have advanced some incorrect argument I still think it should h'ave the right to try out upon "the merits the issue which it thus raised, and a referee will be appointed to take evidence upon the subject and report the same with his opinion as provided by law.

_ Ordered accordingly.  