
    The People ex rel. William Carter, Supervisor, et al., Pl’ffs v. James L. Williams et al., State Assessors, et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Taxes—Equalization of assessments—Appeal to state assessors— Evidence.
    This proceeding was instituted to review a decision of the state assessors sustaining an appeal taken by the town of Geneseo from the equalization of the assessments of the county of Livingston, made by the board of supervisors of that county, and directing a certain sum to be levied upon all the other towns of the county except Geneseo, and such sum credited to the latter. Upon the hearing of the return to the writ of certiorari it appeared that before the state assessors two classes of evidence were adduced and mainly relied upon by the parties hereto, one known as the- “ sales list,” which is an abstract from the county clerk’s records, where they purport to show the true consideration of transfers of real estate, and the other the opinion of witnesses who were acquainted with the value of real estate throughout the county. Held, that the “ sales list” was competent evidence only because made so by the board of assessors themselves, and is not common law evidence, and that there being no such preponderance of evidence against the existence of the facts found as would warrant the setting aside of a verdict to the same effect, the decision of the board could not be disturbed.
    Certiorari to review the determination of the state assessors upon an appeal taken by the town of Geneseo from equalizations made by the board of supervisors of Livingston county in the year 1891.
    
      E. A. Nash, for pl’ffis; Strang & Doty and Hubbard & Coyne, for def’ts.
   Macomber, J.

This cause came "on for argument upon a return made by the state assessors to a writ of certiorari issued by the special term in Rochester, on the 21th day of November, 1891.

The supervisors of the town of Geneseo brought an appeal to the state board of assessors from the equalization of the assessment and correction of the assessment rolls of-the several towns-of the county of Livingston, as made by the board of supervisors in the year 1890. The matter was heard by the state assessors in June, 1891. Much evidence was taken before the state board upon such hearing, consisting of both oral and documentary evidence, all of which has been returned to this court. The state assessors made a decision and determination by which they held that eight of the towns of the county of Livingston had, by the board of supervisors, been equalized too high, and among them was the town of Geneseo, which was said to have been $121,750 too high. Seven towns of the county were held to have been assessed too low; while in two towns no finding upon the subject was made.

By reason of the unjust equalization of the town of Geneseo there has been paid into the county treasury by that town the sum of $690.81 more than its just proportion of the state and •county taxes for the year 1890. This sum was by the state board directed to be levied upon all of the tow: ns of Livingston •county, except the town of Greneseo, together with the costs and •disbursements of the9appeal taken from, the determination of the supervisors to the state board of assessors. Under the evidence returned to us, there can be little .doubt that the determination and decision of the state board of assessors was, in all respects, correct. It appears that there were two classes of evidence adduced before-the state board, and mainly relied upon by the parties •to this controversy, namely, one known as the “ sales list,” which is an abstract from the county clerk’s records, where they purport *o show the true consideration of transfers of real estate; and the •other, the opinion of witnesses who, to a greater or less extent, were acquainted with the value of real estate throughout the county.

.The evidence derived from the “sales list” was largely relied upon by the relator. This evidence was competent only because it was made so by the board of assessors themselves, and is not common law evidence. People ex rel. The Mayor v. McCarthy, 102 N. Y., 630; 2 St. Rep., 546; People ex rel. Schabacker v. State Assessors, 47 Hun, 451; 14 St. Rep., 309. But even by the “ sales list.” the equalization of the town of Greneseo was shown to be :somewhere from $22,333 to $36,000 too high; while the common law evidence, that is to say the opinion of men acquainted with the value of real estate in Livingston county, shows that its equalization was too high in sums ranging from three hundred thousand dollars downward. Considering all of the' testimony laid before them, the 'state assessors have reached a conclusion which ■seems to us to be warranted by the evidence. The case, therefore, inasmuch as it presented to the board of state assessors only a question of fact, is not difficult of solution under the rule laid-down for our guidance by statute. By the Code of Civil Procedure, § 2140, subdivision 5, we must confirm the determination unless we are able to say that, upon all of the evidence returned to us, there was such a preponderance of proof against the existence of any facts found by the state board that the verdict of a jury affirming the existence thereof would be set aside by the court as being against the weight of evidence. This we cannot do with a due regard to the proofs.

We think therefore, that the judgment and determination of the board of state assessors should be affirmed.

The determination and judgment of the state assessors confirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  