
    People ex rel. Rome, Watertown and Ogdensburg Railroad Company, Applt’s, v. Parley Haupt, et al, Assessors etc., of the Town of Somerset, Niagara County, Resp’ts. Same Appl’ts v. Peter Smoyer et al Assessors etc., of the town of Wilson, Resp’ts.
    
      (Court of Appeals
    
    
      Filed March 1, 1887,)
    1. Taxes and Assessments — Effect of delay in delivery of assessment roll — Laws 1880, chap. 269.
    The failure to deliver the completed assessment roll of a town to the town clerk or other proper officer until twenty days after the 1st of September as required by Laws 1880, chap. 269, § 9. does not vitiate the assessment.
    2. Same — Publication of notice of delivery — Effect of failure.
    The omission of the assessors to publish the notice of. the delivery of the ■ assessment roll to the town clerk does not affect the validity of the assessment, but the right to review by certiorari remains unlimited as to time.
    Appeal in four eases from an order of the supreme court, general term, fifth department, affirming an order of the special term quashing a writ of certiorari to review the assessment of the property of the relator by the assessors of certain towns.
    
      Edmund B. Wynn, for appl’ts ; E. Brundage and Ellsworth & Potter, for resp’ts,
    
      
       Affirming 6 N. Y. State. R.
    
   Finch, J.

The papers in four appeals from orders quashing as many writs of certiorari, and in another similiar case not before us, are. printed for our use with a disorder and confusion scarcely to be excused. With the aid of the briefs .of counsel we hope that we have been enabled to understand and appreciate the question sought to be raised.

The general term say that no questions of law, and only questions of fact, were presented by the appeals ; but in the brief of the appellant we find three errors in the assessments alleged and relied upion as sufficient to vitiate the tax imposed. One of these is that the assessors of the town of Wilson did not meet to hear complaints on the third Tuesday of August, 1883, but met for that purpose only on the thirty-first of that month; and that the fact appears in the copjr o:f ¡ their notice, marked “ Exhibit II.” The fact so appears in the printed copy of that notice; but a stipulation signed by counsel for both parties certifies that the date of August 31st is a misprint, and should read August 21st. The ground of objection, therefore, disappears.

It was charged in one of the petitions that the assessment roll of the town of Wilson for 1883 was not finally completed and verified by the assessors, and delivered to the town clerk or other officer to whom such roll is required by law to be delivered, on or before the first day of September, 1883. No proof was given on the subject, but the admissions of the return are relied on. Those show that the assessors met to hear complaints on the third Tuesday of August; that from that day until the twentieth day of September the roll remained in possession of Cooper, one of their number, “ open to inspection,” and on that day was “ left completed and verified with the town clerk.” The admission goes no further than the date of delivery to the town clerk, and does not show that the roll was not completed and verified on or before September 1st. An extract from the roll is all that is printed; the printing of the roll and assessor’s affidavit having been waived. The delivery of the completed and verified roll is required, by section 9 of the act of 1880, to be made to the town clerk or other proper officer “ on or before the first day of September.” The return shows a delivery 20 days later. Such delay did not vitiate the assessment. The provision is directory; and since the relator had his 15 days after the delivery to the town clerk within which to sue out his writ, and did actually do so, we cannot see how it has suffered any prejudice from the delay. The town clerk returns that, after its delivery to him, it remained open for inspection in his hands for the required 15 days. The return shows that the roll, which we must assume was completed and verified on or before September 1st, remained open to inspection in the hands of one of the assessors until the 20th, and then, after due notice, so remained for 15 days in the hands of the clerk. We should sacrifice substance to form if we held that such a mistake vitiated the whole assessment.

The question under the act of 1880 assumes a different form as it respects the town of Somerset. Apparently the assessors of that town never published a notice of the delivery to the town clerk at all. The sole object of that provision, however, appears to be to set running the 15 days within which parties aggrieved may sue out their writ. Section 2. If the notice be not given, the right to review by certiorari remains unlimited as to time. The 15 days are not set running. The consequence of the omission cannot be fatal to the validity of the assessment, but leaves the door open for a review unlimited as to time. The assessment, lawfully made and completed, did not become “ illegal ” by the omission of the notice required by section 9 of the act of 1880.

The remaining questions arise wholly upon the facts. An inequality of assessment was asserted. Evidence of the value of farms largely in excess of the assessed values was given on behalf of the relator, but met by an equal, if not a larger, body of evidence sustaining the official valuations. An over valuation of the railroad was sought to be proved, and a body of evidence was given, relating to its earning capacity, and tending to show that its value was overestimated. On the other hand, the sources and accuracy of that evidence were criticised, the cost of construction was shown, the opinions of experts were given, and, back of all that remained, the observation and judgment of the assessors. Upon the evidence the question of value was purely one of fact. It has been revierved by the special and general terms, but should not be by us. No legal error is disclosed by the record which warrants our reversal of the proceedings.

The orders should be affirmed, with one bill of costs in this' court.

All concur.  