
    The People of the State of New York ex rel. Glen Telephone Company, Respondent, v. Robert C. Hall and Others, as Assessors of the Town of Canajoharie, Montgomery County, N. Y., Appellants.
    Third Department,
    January 22, 1909.
    Tax — certiorari to review assessment — assessors must act on evidence — costs —• extra allowance.
    Assessors in hearing grievances act in a judicial capacity and must be governed by the evidence before them. They cannot discredit verified statements of an owner when there is no evidence that they are untrue.
    Thus,, where the verified statement of a corporation submitted to town assessors shows that all the property assessed consists of poles, wires and equipment located on the public highways, and that they have been assessed as real estate by the State board in levying a special franchise tax so that there is- no realty subject to taxation, the assessors cannot make an assessment upon the theory that some of. the telephone equipment is on private property instead of upon the highway, in the absence of any evidence justifying such conclusion.
    On certiorari to review an assessment, the. subject-matter involved is the tax, not the assessment, and an extra allowance under section 3253 of the Code of Civil Procedure is not authorized.
    Smith, P. J., and Cochrane, J., dissented.
    
      Appeal by the defendants, Robert G. Hall and others, as assessors, etc., from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 29th day of January, 1908, striking from the assessment roll of the town of Canajoliarie an assessment of $500 as the value of real estate of the relator and awarding costs to the said relator against the town.
    
      N. J. Herrick, for the appellants.
    
      Fred. Linus Carroll, for the respondent.
   Sewell, J.:

It appeared by the statement, verified by the president of the relator and submitted to the assessors upon the review of their assessments, that all the property of the relator, either real or personal, situated in the town of Canajoliarie, consisted of its poles, wires and equipments ; that all of these, except the switchboard and, telephone instruments, are located in, upon and above the public highway in said town ; that these have been assessed by the State Board of Tax Commissioners as real estate and included in its valuation of the spe. cial franchise enjoyed by the company, at the sum of $1,200. It also appeared in the statement that the relator was prepared to substantiate the foregoing allegations by oral testimony and other proof and demanded an opportunity to present the same and be heard in regard thereto.

The assessors in their return admitted that the State Board of Tax Commissioners had fixed and determined the valuation of the special franchise of the relator.in said town at the sum of $1,200, but denied, upon information and belief, that all of its property in the town consisted of poles, wires and equipments located on the public highways. The assessors also returned, upon information and belief, “ that all of the wires, poles and equipment of the said Glen Telephone Company are not and were not erected and maintained in, upon and above the public highways and streets of said Town, but are in part upon and over private lands and property in said Town,” and that the value of the property upon, across and over private property was at least $500.

The defendants returned no other evidence or information than the sworn statement already described. ' They merely stated that the said Board of Assessors received said application, examined into the facts alleged therein, duly considered the same and the merits thereof, and after due considération had, reduced the assessed valuation of real property assessed against the said Glen Telephone Company from the sum. of $1,000.00 to the sum of $500.00.”

Upon the hearing at Special Term no new evidence was offered by either party, from which it must be assumed that they ■ intended to rely on the case as made before the assessors upon the original application and that the writ should be one of. review only. The question was, therefore, presented whether the assessors were justified in discrediting the statement made to them by the relator and making the assessment.

' The rule- is that assessors are not free to capriciously disregard the evidence and emancipate themselves from all restrictions and rules however fundamental. They act in a judicial capacity, in hearing parties aggrieved, and must be governed by the evidence before them, and when they have no ground in such evidence to dispute it they are bound to act in accordance with it. (People ex rel. American Linen Thread Co. v. Howland, 61 Barb. 273; Oswego Starch Factory v. Dolloway, 21 N. Y. 460; People ex rel. Glens Falls Ins. Co. v. Ferguson, 38 id. 89 ; People ex rel. Edison Elec. Ill. Co. v. Barker, 139 id. 55; People ex rel. Edison General Elec. Co. v. Barker, 141 id. 251.)

In the present case all the evidence before the assessors showed that the relator had no real estate, poles or wires that were assessable, and I can see nothing to. cast doubt or suspicion upon it. As was said in People ex rel. Bhumgara Co. v. Wells (93 App. Div. 215): If they were not satisfied with the statement they could have required further information from the relator on that subject. This,, however, they did not do. Having accepted it as true, it is no answer when the validity of the assessment is challenged to allege that they did not believe what was therein stated. Official acts must have something more for their support when brought under judicial review than a mere surmise or belief. There must underlie the belief some evidence tending to justify it. Assessing officers cannot act arbitrarily. When evidence is laid before them as to the existence of certain facts they are bound to consider and act upon it. Of course they are not bound by statements which are contradicted and which they disbelieve where good reasons exist for such ; disbelief (People ex rel. Manhattan Railway Co. v. Barker, 146 N. Y. 314), but where a statement is made, the truth of which'is not disputed, a mere surmise that it may not be true does not justify assessing officers in rejecting such statement or acting ptherwise than in accordance, therewith.”

I think enough has been stated to show that the trial court properly held that the assessment was arbitrary, capricious and wholly without justification.

This appeal also involves the question whether the respondent is entitled to an extra allowance of twenty-five dollars. Under section 3253 of the Code of Civil Procedure the court is authorized to grant the extra allowance in these proceedings not exceeding five per cent upon the sum recovered or claimed, or the value of the subject-matter involved.” The subject-matter involved in this proceeding was the tax and not the assessment. The sole object of'the relator in impeaching the assessment was to get rid of the tax. If the assessment was valid the tax would measure the relator’s pecuniary liability and be the basis for an allowance.

I think, therefore, that the extra allowance was improperly granted and should be stricken from the final order, and as thus modified the order should be affirmed, without costs to either party.

All concurred, except Smith, P. j., and Cochrane, J., who voted for reversal.

Final order modified by striking therefrom the extra allowance, and as so modified affirmed, without costs to either party.  