
    PEOPLE ex rel. OSBORNE v. GILON.
    N. Y. Supreme Court, First District, Special Term at Chambers,
    
    
      December, 1889.
    1. Mandamus; how decision of a board of assessors may be reviewed.] The court will not by mandamus direct a quasi judicial tribunal what to do. It can only set the same in motion where it has refused to act. Where a board of assessors has acted and rendered, judgment in assessment proceedings, mandamus is not the proper remedy for obtaining a review of the judgment. Such review may be had on a writ of certiorari.
    2. Highways; assessment to party becoming owner.] Until the amount. of an assessment for a local improvement is ascertained in the manner prescribed by law, no lien or incumbrance exists by reason thereof, and where a person became the owner of property after certain improvements had been made and the assessment therefor was not completed until eighteen months after the conveyance.—Held, that the assessors were correct in stating the name of such person as-the owner of the property at the time the assessment was made, and that he, and not his grantor, was liable therefor.
    Motion for a writ of mandamus directing the board of assessors of the city of New York to assess certain premises in the names of Margaretta Diehl and Mary Eisele.
    The relator, William F. Osborne, acquired the premises-in question March 30, 1888, by deed from Margaretta Diehl and Mary Eisele, heirs and devisees of one Philip Lambert. Prior to such conveyance, certain improvements, etc., of Westchester Avenue, had been contracted for and completed. The assessment list was not completed and confirmed until eighteen months subsequent to the acquiring of title by the relator. The name of the relator appeared in the tax-books as owner at the time of the assessment, and the assessment was accordingly made in his name. He now seeks to compel the assessors to assess the property in the names of his grantors, as the persons properly responsible.
    
      Truman H. Baldwin, attorney for the relator, for the motion.
    
      William H. Clark, counsel to the corporation, opposed.
   Lawrence, J.

Conceding all that the relator states in his moving papers to be true, this is not a proper case, in my opinion, for granting the mandamus which is asked for. The court will not by mandamus direct a quasi judicial tribunal what to do. It can only set the board of assessors in motion where it has refused to act (People ex rel. Francis v. Common Council, 78 N. Y. 37; and cases cited by Papaleo, J.). Here the board of assessors has acted and has rendered its judgment upon the question referred to in the relator’s affidavits.

If the decision of the board of assessors was wrong, mandamus is not the proper remedy for obtaining a review of its decision. Such a review may be obtained on a writ of certiorari. Besides, it appears from the affidavits that the relator became the owner of the property assessed on the 30th of March, 1888, after the improvement had been made, but before the assessment had been laid. The assessment list was not completed until October 31st, 1889. It was the duty of the relator, if he desired to protect himself against the incumbrance or lien of the assessment, to have provided therefor in his deed or contract of sale.

It was held by the court of appeals in Lathers v. Keogh (109 N. Y. 583), that until the amount of a tax is ascertained in the manner prescribed by law, no lien or incumbrance exists by reason thereof. In that case, the parties entered into a contract for the purchase and sale of certain real estate in this city, the conveyance to be made August 23, 1883, by warranty deed, “free and clear of all incumbrances,” except certain specified mortgages. Prior to the making of the contract, an assessment of the property for the tax for the year 1883 had been made, but the calculation of the tax was not made until thereafter, and the tax was not confirmed until August 29th, which, upon the defendant’s refusal, the plaintiff was compelled to pay.

In an action to recover the amount so paid, it was held, that the tax wras not a charge or incumbrance upon the property, which the defendant was bound to pay under the covenant in his deed. In the case at bar, I have nothing before me which shows what the covenants were, which were contained in the deed to the relator, from the' heirs and devisees of Philip Lambert. Even if it was a full covenant warranty deed, the case just cited shows that, as between the grantors and the grantees, the former could not have been compelled to pay an assessment which was not completed until eighteen months after the conveyance took ■effect.

That the assessors were right in stating the name of the relator as the owner of the property at the time of making the assessment, is not only apparent from the conceded facts of the case, but he also appeared so to be from the tax books (see Paillet v. Youngs, 4 Sanf. 50). Section 871 of the Consolidation act is only a re-enactment of the Laws of 1813, as modified by chapter 326 of the Laws of 1840, which acts were considered in that case (see also Matter of Tappan, 54 Barb. 227 ; and Haight v. Mayor, etc., 99 N. Y. 283).

Por these reasons this motion will be denied, with costs.  