
    The People of the State of New York ex rel. William Kennedy, Appellant, v. Frank A. O'Donnel and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Second Department,
    June 4, 1909.
    Mew York city — tax — personal property assessment — review — certiorari.
    Section 895 of the Greater New York charter does not require the commissioners of taxes and assessments to compel the attendance of one applying to have his personal property tax reduced.
    Under said section one seeking relief from an assessment on personal property is bound to present himself before a commissioner or a deputy for personal examination upon the merits of his application prior to the last day of May.
    Where one simply sent an affidavit of his personal property to the commissioners and asked to have his assessment canceled, but failed to appear in person, he has no right to a writ of certiorari to review the assessment.
    That the commissioners returned the affidavit as insufficient and unsatisfactory and because “ personal appearance of the party assessed is necessary before March 31st” did not relieve the affiant from appearing in person sometime prior to the following May.
    Appeal by the relator, William Kennedy, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of July, 1908, confirming an- assessment upon the relator’s personal estate, and dismissing a writ of certiorari to review such assessment.
    
      Artemas B. Smith, Harold H. Bowman and William J. Bowman, for the appellant.
    
      David Rumsey and George H. Folwell [Francis K. Pendleton, Corporation Counsel, with them on the brief], for the respondents.
   Rich, J.:

On January 9, 1905, the department of taxes and assessments of the borough of Brooklyn mailed a written notice to the relator stating that his assessment upon personal property, exclusive of bank stock, for the year 1905 was $10,000; that, if erroneous, such assessment could only be corrected on personal application to the commissioners, made on or before. March' 31, 1905. The relator paid no attention to this notice until late in the afternoon of March thirty-first — the last day on which an application could be made — at which time he caused an affidavit to be filed with the commissioners, stating that the value of his merchandise, stock in trade, etc., was $1,250; cash on-hand and on deposit, $7,701.84, and value of other chattels $1,000 — in all $9,9.51.84; that he owned no notes or bills recéivable, no open accounts or mortgages; that.he owed on bond and mortgage $15,000; owed on notes $17,000, and owed on open accounts $39,567.07, a total of $71,567.07. Upon this statement he asked “ that the alleged assessment of his personal property for the year 1905 be canceled from the assessment rolls.” The commissioners declined to act upon the affidavit because of the failure of the relator to appear in person, and on the same day the affidavit was returned to the relator by mail, with the words' “ to whom ” written in the margin opposite his statement of the amount owed on notes and on open accounts, and a letter from the deputy in charge .of personal assessments stating that it was returned as “ unsatisfactory and insufficient, and for the further reason that personal appearance of the party assessed is necessary before March 31st, 1905.” On the following day, April first, the relator returned the affidavits to the department by mail, with the following letter :

“ To the Department of Taxes' and Assessments of the City of New York.
Room 20, Municipal Building, Brooklyn, 1ST. T.;
“ Sirs.— I have . had the honor to receive to-day a communication addressed to me by ‘ the Deputy in charge of Personal Assessments,’ dated yesterday, and therewith returning to me my written application, duly signed and sworn to by me for the correction of the assessment relating to the assessed valuation of my personal property made by your Board for the year 1905, ■ and which I had filed in said office yesterday, as the law prescribes. I apprehend the sending of the paper to me was a mistake, because it was' filed in said office yesterday according to law, and it should remain on file in your Department. Therefore, I herewith respectfully return it to yon and request you to retain it on file, in accordance with the original filing of yesterday, I note that in your letter you state no reason why my said application should not have been made by me or filed in your office. Your statement that it ‘is returned as unsatisfactory and insufficient ’ gives me no information why my application so filed is not a full and strict compliance with the requirements of the law.
“ Respectfully yours,
“ WILLIAM KENNEDY.”

The relator made no personal application to the commissioners, nor is it claimed that he, at any time, requested a hearing or to be personally examined by them on the subject of his assessment, or in support of his affidavit. Later — the specific time not appearing — the commissioners confirmed the assessment. Section 895 of the Greater New York charter, entitled “ Applications for correction of assessment,” provides that when the application is made in relation to the assessed valuation of real estate it must be made in writing, stating the grounds of objection. As to personal property it provides: “If such application be made in relation to the assessed valuation of personal estate the applicant shall be examined under oath by a commissioner of taxes and assessments or a deputy tax commissioner, as herein provided, who are hereby authorized to administer such oath * * *. But the commissioners of taxes and assessments may, during the months of April and May in any year, act upon applications, examine applicants under oath and take other 'testimony thereon, for the reduction of assessments upon either real or personal property filed in their offices on or before the thirty-first day of March preceding, and cause the amount of any assessment as corrected by the board of taxes and assessments to be entered upon the assessment rolls for the year in which such Correction may be made.” The provisions of this section relating to personal property do not prohibit the filing of a written application for the correction or cancellation of an assessment, nor do they require that the application shall be made to the commissioners personally by the person seeking relief. In the case at bar it was properly presented by the attorney of the relator in the first instance, and was filed within the time limited.by law therefor. The statute, however, requires that the applicant shall be examined under oath, but this may be done at a time subsequent to the time of filing the application. This law imposes upon the person or corporation seeking relief from an assessment upon personal property the duty of taking ' the initiative in bringing the matter to a hearing, and the relator was bound to'present himself before the commissioners or á deputy for the purpose of a personal examination upon the merits of his application prior to the last day of May. The statute does not require the commissioners to compel the attendance of an applicant. (People ex rel. Rochester Lamp Co. v. Feitner, 65 App. Div.. 224.) Undoubtedly the commissioners could waive the requirement of. personal examination for reasons satisfactory to themselves, but they did not do so- in this case. Instead, they notified the attorney for the relator when the affidavit was filed that no action could be taken, without the relator’s personal presence, and that the affidavit was of no use.' It then became incumbent upon the relator to present himself for- personal examination under oath before the following- May. The effect of the information given by the commissioners- was to" notify the relator that they required evidence upon the matters to which his attention was directed. The commissioners had returned the affidavit as insufficient and unsatisfactory, and the relator could -not, by simply remailing it to them, o vercome their objections. The contention that, because in the letter accompanying the affidavit when it was returned the deputy stated as a further reason for its return “that -personal" appearance of the party assessed is necessary before March 31st, 1905,” the relator was relieved from the duty or necessity of appearing before the commissioners: for a personal - examination or attempting to procure a hearing at which his evidence might be takon,.is without merit.

Having failed to avail himself of the opportunity secured by the charter to those desiring a reduction or cancellation of their assessments, the relator -has nb right to review his assessment, the court was without jurisdiction .to issue the writ of certiorari for that purpose, and the order must be affirmed,., with costs.

, Hiesohbebg-, P.. J., Woodwaed, Jenics and Millee, JJ., • concurred.

Order dismissing- writ bf certiorari affirmed, with ten dollars costs and disbursements.  