
    People ex rel. Manhattan Ry. Co. v. Coleman et al., Commissioners of Taxes.
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    1. Taxation—Assessment—Certiorari to Review—Reference to Take Further Proof.
    On certiorari to review the action of tax commissioners in rejecting the application of relator for relief from the assessment of its personal property on the ground that it was largely invested in United States bonds, an application was made for a reference to take further proof establishing the alleged illegality, and that the assessment was made on a valuation exceeding that adopted for other similar property, and was opposed on the grounds that the examination already had before the commissioners, as provided by Laws 1882, o. 410, (New York city consolidation act,) § 820, had been very extended, and that the objection of inequality could not he raised under Laws 1885, o. 811, § 2, amending the consolidation act (section 821) by providing that “ certiorari to review or correct on the merits the action of the commissioners shall be allowed only on the grounds, to he specified in the petition, that the assessment is illegal, giving the particulars of the alleged illegality, or that it is erroneous by reason of overvaluation. ” Seld, that as the hearing before the referee could not be either prolonged or extended, and as the relator should not he deprived oí the opportunity of giving further evidence concerning its investment in the bonds, the reference cannot be held to be so unwarranted as to require or justify a reversal.
    2. Same — Assessment—Certiorari to Review — When Proceedings of Assessors will be Stated.
    Laws 1880, c. 269, providing for the review of assessments by certiorari, controls that subject, as section 2 provides that a writ allowed thereunder “shall not stay the proceedings of assessors or other persons to whom it is directed, or to whom the assessment rolls may be delivered according to law. ” Code Civil Proo. § 2131, relating to stay of proceedings on certiorari, cannot apply; and an order staying the collection of a portion of the tax imposed on the relator in consequence of the assessment sought to be reviewed, is unauthorized.
    3. Same—Collection—Repatment of Excessive Taxes.
    An order requiring the tax commissioners, respondents in certiora/ri to review an assessment, to enter into a stipulation for the return to' relator of so much of the money which shall have been paid by him as shall be adjudged to be in excess of the lawful amount, is unauthorized, as Laws 1880, c. 269, (relating to the review of assessments by certiorari,) § 8, provides and defines the manner in which repayment of such excess may be obtained.
    Appeal from special term, New York county.
    On certiorari to review an assessment for purposes of taxation. The respondents, tax commissioners for the city and county of New York, appeal from an order for a reference to take proofs and return them to the court, and for a stay of proceedings.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      George S. Coleman, for appellants. Julien T. Davies, for respondents.
   Daniels, J.

The relator has sued out and prosecuted this writ of certiorari to be relieved from the assessment of its .personal property for the purpose of taxation. An application was made to the commissioners to vacate the assessment on the ground that the relator had invested $26,827,500 in United States bonds; and an examination was had before them, under section 820, c. 410, Laws 1882, and upon the facts elicited by that examination the application of the relator was rejected. In support of the writ it has been alleged that the assessment was illegal, and also that it was made upon a valuation exceeding that adopted for the assessment of other similar property in the city of New York. An application was made to the court at special term for a reference to take further proof establishing the alleged illegality and excessive assessment. This application was resisted, on behalf of the respondents, for the reason that the examination before the commissioners had been quite extended, and the objection of inequality in the assessment could not be raised by the relator. The latter objection was placed upon the language of chapter 311, Laws 1885, amending section 821, c. 410, Laws 1882. By this amendment the grounds upon which a writ of certiorari to review or correct an assessment may be issued in the city of New York are those of alleged illegality or overvaluation. On the part of the relator, however, it has been objected that this act is a violation of section 1, art. 14, of the constitution of the United States, so far as it has declared that no state shall deny to any person within its jurisdiction the equal protection of its laws. Whether this amendatory act is liable to this objection, inasmuch as it has been made applicable to all assessments in the city of New York, is certainly, to say the least of it, a matter of very great doubt. But on an application of this description that doubt should not be solved, for the evidence upon which the objection has been taken to the act is no part of the case, and the hearing before the referee to obtain it cannot be either prolonged or extended. Neither should the relator be deprived of giving further evidence, if it shall be able to do so, concerning the alleged investment made in United States bonds. For these reasons the reference itself cannot be held to have been so entirely unwarranted as to require or justify a reversal of this part of the order.

But. by another portion of the order which was made, a stay of the collectian of 40 per cent, of the tax imposed upon the relator in consequence of the assessment was made. This stay was entirely without authority, for, as the writ was issued under the act of 1880, it was subject to all the restraints mentioned in that act; and one of those restraints is that declared by section 2 of the act, that “a writ of certiorari allowed under this act shall not stay the proceedings of assessors or other persons to whom it is directed, or to whom the assessment roll may be delivered to be acted upon according to law. ” The stay is stated to have been made, not under the authority of this act, but under that of the Code of Civil Procedure. But the authority given for a stay by section 2131 of the Code is inapplicable to this proceeding in consequence of the prohibition contained in the act of 1880. And this construction, if it needs any authority'whatever, is supported by People v. Assessors, 106 N. Y. 671, 12 N. E. Rep. 794.

The order further provided that a stipulation should be entered into on behalf of the respondents for the return to the relator of so much of the money as was directed to be paid as the condition of the stay, in case it should in the end exceed the tax which the relator was liable to pay. By section 8, c. 269, Laws 1880, the proceeding has been provided for and defined through which the return of any excess of payment shall be obtained, and that proceeding, as the act has created and defined it, seems to be conclusive. So much of the order, therefore, as required the stipulation, and provided for the refunding of the money, was also unauthorized, and cannot be supported. As to the reference ordered to take proof, the order should be affirmed, but in all other respects it should be reversed, without costs to either party.

Van Brunt, P. J„ and Brady, J., concur.  