
    The People of the State of New York ex rel. The Bronx Gas and Electric Company, Appellant, v. Thomas L. Feitner and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    
      Tax assessment — where an issue of fact is-raised by the return to a writ of certiora/ri issued to review it, evidence must be talcen.
    
    The provisions of section 253 of the Tax Law (Laws of 1896, chap. 908), providing that if, upon the hearing upon a writ of certiorari issued to review an assessment, ‘ ‘ it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take ” it, and! report thereon to the court with his findings of fact and conclusions of law, “ which shall constitute a.part of the proceedings upon which the determination of the court shall be made," are mandatory and contemplate that testimony shall be taken in such cases wherever an issue of fact is raised.
    ' Where the petition of an owner of real estate in the city of New York, upon which such writ is granted, alleges that the assessment of his property, made in 1898, is illegal and erroneous because the property was assessed at an overvaluation and also because the assessment was unequal in that it was based upon a higher proportionate valuation than that of other real estate on the same roll for.the same year, and the return to the writ substantially denies such allegations and alleges that the original cost of the property in question was about one-third greater than', and that the income therefrom during the year preceding the time when the assessment was made was more than two-thirds of, the amount at which it Was assessed, it is error for the court, upon the trial of the issue thus raised, to dismiss the proceeding before any evidence has been taken and in disregard of a request made by the petitioner that evidence be then taken of that a referee be appointed for that purpose.
    Appeal by the relator, The Bronx Gas and Electric Company, from a judgment of the Supreme Court in favor of the defendants, bearing date the 25th day of May, 1899, and entered in the office of the clerk of the county of New York, upon an order made at the New York Special Term, bearing-date May 15,1899, and entered in said clerk’s office, denying the relator’s motion for judgment and quashing a writ of certiorari issued to review an assessment for taxation upon real property of the relator, and also from the said order.
    
      Alfred B. Cruikshank, for the appellant.
    
      James M. Ward, for the respondents.
   McLaughlin, J.:

Section 906 of the charter of the city of New York provides that a certiorari to review or correct on the merits any final determination of the board of taxes and assessments shall be allowed by the Supreme Court or any justice thereof on the verified petition of the party aggrieved, but only on the ground, which must be specified in such petition, that the assessment is illegal or erroneous by reason of overvaluation, or, in the case of real estate, that the same is erroneous by reason of inequality, in that the assessment has been made at a higher proportionate valuation than the assessment of other real estate on the tax roll of the city for the same year, and that the Detitioner will be injured thereby. In pursuance of this section the relator applied, upon a verified petition, to and obtained from the Supreme Couft a writ of certiorari to review an assessment made in 1898 by the commissioners of taxes and assessments of the city of New York upon its property, which consisted of two pieces of real estate, and certain appliances used by it in generating electricity and in furnishing electric lights. In its petition it alleged that the assessment was illegal and erroneous because its property was assessed at an overvaluation, and also because the assessment was unequal in that its property was assessed at a higher proportionate valuation than other real estate (many instances of which were given) on the same roll and for the same year; that its property was assessed at $89,000, instead of $14,644, which was the full value, and at more than it would sell for under ordinary circumstances; and that by reason of such inequality and overvaluation the relator would be injured; that an application had been made, in the manner provided by law, to the commissioners of taxes and assessments for' a reduction, and that its application was denied.

The respondents in their return to the writ alleged that the assessment was duly and legally made; that the relator applied for a reduction of its . assessment, and for the purpose of procuring the same it furnished a written statement as to the value of its property, and that this statement showed that the original cost of the property assessed at $89,000 was upwards of $130,000, and that the income therefrom during the year preceding the time the assessment was made was.more than $61,000 ; and as to the statement that the assessment was unequal, “ in that it was made at a higher proportionate valuation than other real or personal property on the same rolls,” they certified and returned, “ upon information and belief, that each and every of such statements is untrue.”

The issue formed by the petition -for, and the return to, the writ came on for trial, and on the opening, and before any evidence had been taken, the learned justice at Special Term, notwithstanding the relator requested that evidence be then taken, or else a referee be appointed for that purpose, dismissed the proceeding, and the relator has appealed. We are of the opinion that the appeal is well taken. The court could not thus summarily dispose of the matter. A ques-Ron of fact was presented, both as to the overvaluation of the relator’s property and the. inequality of the assessment, which question the .relator had a legal right to have determined from such evidence as it and the respondents might produce. This is precisely the right which the statute gave him. The Tax Law provides (Laws of 1896, chap. 908, § 253): If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.” The statute, while permissive in form, is, nevertheless, mandatory. It provides for the doing of an act for the sake of justice, and for that end clothes a public officer with power, the exercise of which concerns the interest of individuals, and, although the language is permissive, it must be construed as mandatory. .(People ex rel, Otsego County Bank v. Supervisors, 51 N. Y. 401.) Under it the court had no option, when it is “ necessary for the proper disposition of the matter,” except to determine whether it will take the evidence itself or appoint a referee to do so for it. In all cases of this character, where an issue of. fact is raised, the statute contemplates that testimony shall be taken. It was never intended by the- Legislature that the issues raised by the petition and the return thereto should be tried in any other way. The petition “ is in the nature of a pleading, and only conclusions of fact need be stated, and not the evidence necessary to support them. The statute says that the writ may be allowed on the duly verified petition of the taxpayer, when the petition shall set forth that his assessment is unequal, in that it has been made at a higher proportionate valuation than other property on the same roll, and that he will be injured by such unequal assessment.” (Matter of Corwin, 135 N. Y. 245.) This petition contains all the allegations required by the statute to obtain the writ. It alleges that the other assessments on the roll were made at a lower proportionato valuation than the assessment of the relator’s property, and that its assessment is not only lai’gely in excess of the real value of the property, but is not in proportion to the basis of the valuation adopted in making other assessments. It seems to me that the petition brings the case directly within the rule laid down by Judge A.ndrews in People ex rel. Warren v. Carter (109 N. Y. 576), which is that a relator must “show a state of facts from which a presumption justly arises that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax.” It has long been settled that in proceedings to review assessments the return of the assessors is not conclusive. (People ex rel. Manhattan Ry. Co. v. Banker, 152 N. Y. 417; People ex rel. Ulster & Delaware R. R. Co. v. Smith, 24 Hun, 66; People ex rel. Dexter v. Palmer, 86 id. 513.) A judgment, therefore, such as the court at Special Term rendered would be justified only when a judgment on the pleadings might properly be rendered in an action. That could only be done for the defendant when the complaint failed to state. facts sufficient to constitute a cause of action. That certainly could not be done in this case, because, as we have already seen, the petition states a violation of the statute, both as to the overvaluation and as to the inequality of the assessment.

The statute giving to taxpayers the right to review assessments is a wholesome and beneficial one. Its purpose is to prevent favoritism and partiality on the part of the assessing power, and to subject all taxable property alike to-its fair, just, and proportionate share of tax. To" accomplish this, it is made the duty of the court, when facts are properly presented, to review the decision of the taxing body on the merits, and that was not done in this case. The court-should have taken, or appointed a referee to take, testimony, and from that have determined whether the relator was illegally assessed. The relator requested that this be done, but his request was refused, and for the error thus committed the order and judgment appealed from must be reversed, with costs, the writ reinstated, and the proceeding remitted to the Special Term for action according to law.

.Van Brunt, B. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Judgment and order reversed, with costs, writ reinstated, and proceeding remitted to the Special Term. 
      
      Laws of 1897, chap. 878.— [Rep.
     