
    In the Matter of the Application of the New York, Ontario and Western Railway Company, Respondent, for a Writ of Certiorari to Dwight O. Whedon and Others, as Assessors of the Village of Centerville Station, Sullivan County, New York, and Victor S. Kogan, as Village Clerk of Centerville Station, Sullivan County, New York, Appellants.
    Third Department,
    March 14, 1913.
    Tax—assessment of property of railroad company situated in incorporated village — certiorari — when assessment not illegal — when assessment may not be stricken from roll.
    Where upon certiorari to review the assessment of the property of a railway company situated in a village, it appears from the petition and return that the village having been incorporated the preceding year the assessors adopted the assessment of the last preceding year of the town in which the village is located as far as practicable, that the assessors had jurisdiction of both the relator and of its property and that no claim was made that the village was not legally incorporated, or that the assessment was not duly made, the assessment cannot be held to have been illegal.
    Hence, the court cannot order the assessment stricken from the roll, but may correct the present assessment, in ease the proofs taken by the court or by a referee appointed for that purpose require it.
    
      Appeal by Dwight O. Whedon and others, assessors, and by Victor S. Kogan, village clerk, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Sullivan on the 16th day of September, 1912, striking from the assessment roll of said village the assessment of relator on the ground that it is illegal.
    
      Henry L. Slobodin, for the appellants.
    
      Carpenter & Rosch, for the respondent.
   Lyon, J.:

The relator was assessed on the assessment roll of the village of Centerville Station in the county of Sullivan for the year 1912 in the sum of $30,000 on account of real property situated in said village upon which were located passenger and freight station buildings and one and twenty-seven one-hundredths miles of railroad track, consisting of side track and switches, and of a portion of its main line extending from the city of Oswego to Cornwall on the Hudson river. On grievance day the relator appeared before the board of assessors and made application for a reduction in the amount of said assessment, filing with said board the affidavits of its tax agent and its attorney, alleging that said assessment was erroneous by reason of overvaluation and unequal in that said relator’s property was assessed at a higher proportionate valuation than other property on the roll, but making no statement, so far as the record discloses, as to the cost of replacing or the actual value of relator’s property within said village. The assessors refused to reduce the assessment, whereupon relator, claiming that said assessment was unjust and unequal and hence made upon an illegal basis, obtained a writ of certiorari, upon the return of which the court granted an order striking said assessment from the roll as illegal. From such order this appeal has been taken.

From the petition and return, upon which said order was based, it appears that the village of Centerville Station having been incorporated the preceding year and being included within the boundaries of the town of Fallsburg, the assessors adopted the assessment of said town of the last preceding year as far as practicable as to all property situated wholly within the village, and in arriving at the valuation of relator’s real property the assessors adopted as a basis the fact that the relator’s real property in the town of Fallsburg consisted of four sets of station buildings and grounds and thirteen and seven one-hundredths miles of railroad, including telegraph lines, assessed at $165,000. The assessors valued ■ each group of station buildings at $25,000 and each mile of railroad at $5,000, thereby arriving at $30,000 as the value of the real property of relator assessable in said village. The assessors also took into consideration the fact that the real property in school disr trict No. 13, which embraced said village and less than two miles of track outside, was valued at $39,454.

The only question involved upon this appeal is whether the assessment of relator’s real property was illegal, or simply erroneous or unequal, for if the latter only, the power of the court was limited to ordering a reassessment or the correction of the present assessment, to which end the court might take evidence or appoint a referee for that purpose. Only in case the assessment was illegal could the court order it stricken from the roll. (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 293, as amd. by Laws of 1911, chap. 302.)

I think the assessment cannot be held to have been illegal. The distinction between an erroneous and an illegal assessment is stated in National Bank of Chemung v. City of Elmira (53 N. Y. 49, 58) as follows: The former is when the officers have power to act, but err in the exercise of the power; the latter where they have no power to act at all.” (See, also, People ex rel. Hermance v. Supervisors, 10 Hun, 545.)

Concededly the assessors had jurisdiction of both the relator and of its real property situated within the limits of Centerville Station. No claim is made by relator that the village was not legally incorporated nor that the trustees acting as assessors were not legally chosen, nor that the assessment roll was not made, deposited, complaints heard after due notice given, roll verified and filed, all as required by the Village Law (Consol. Laws, chap. 64 [Laws of 1909, chap. 64], as amd.). Adopting an improper method of determining the value of relator’s property, assessing it at a higher proportionate valuation than other property on the roll, or omitting to assess personal property of which the assessors may have had knowledge would render the assessment unequal and erroneous, but would not render the assessment illegal. The court should not, therefore, have ordered the assessment stricken from the roll, but should have corrected the present assessment in case the proofs taken by the court or by a referee appointed for that purpose required it. (People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304; People ex rel. Broadway R. Co. v. Feitner, 61 App. Div. 156; affd., 168 N. Y. 661; People ex rel. Thomson v. Feitner, Id. 441.)

The order of the Special Term should be reversed, with costs to the appellants to abide the event, and the matter remitted to the Special Term to determine the issues raised by the petition and return.

All concurred; Howard, J., not sitting.

Order reversed, with costs to appellants to abide event and matter remitted to the Special Term to determine the issues raised by the petition and return.  