
    The People ex rel. The Niagara Falls Hydraulic Power & M’f’g Co., Resp’t, v. Edward E. Russell et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Taxes. — Costs in pboceedings to seduce assessments.— Laws 1880, chap. 269.
    In the absence of a finding that the assessors have acted with gross negligence or bad faith, or maliciously, the relator, in a proceeding under chap. 269, Laws 1880, cannot recover costs. The statute in such case prohibits an award of costs against the assessors.
    3. Same.
    An order directing the reduction of an assessment on relator’s property, granted in a proceeding brought under chap. 269, Laws 1880, contained a direction that the costs be audited and included in the next year’s tax levy. Held, that there is no provision of the law by which relator can be permitted to recover such costs except where it is shown that the assessors have acted with gross negligence, or bad faith, or maliciously; that there was no statutory provisions for such direction, and that it was erroneous.
    Appeal from a portion of an order of the special t^rm, entered July 19, 1888, by which the costs of the plaintiff in this proceeding, which was brought under the statute to reduce excessive and unequal and erroneous assessments, chap. 269 of the Laws of 1880, were directed to be audited and allowed to the relator, and included in the next year’s tax levied by the village of Niagara Falls. °
    
      W. Caryl Ely, for app’lts; Charles H. Piper, Sr., for resp’t.
   Macomber, J

The defendants are the assessors of the village of Niagara Falls. In making up the assessment roll in the year 1887, they, placed certain lands, owned by the relator, upon the roll at the value of $23,200. The relator claimed such valuation to be excessive, unequal and not proportionate to the value of other real estate in that village, upon the day set for hearing grievances, the relator duly appeared and was heard, and a slight reduction was made, but not enough to satisfy his demands. A writ of certiorari under the statute was duly issued, and upon the return thereto, and upon the evidence subsequently taken, it was decided by the special term that the assessment should.be reduced to the sum of $18,360, making a reduction of $4,640.

The tax upon this excessive valuation, namely $14.37, having been paid by the relator, was properly directed by the court to be audited and allowed by the assessors in the next annual tax levy of the village of Niagara Falls. Section 8, chap. 269 of the Laws of 1880, as amended by chap. 342 of the Laws oh 1887. Without such direction by the court, it would have been the duty of the assessors so to enter the same in order to reimburse the plaintiff for an unlawful payment exacted of him.

The provision for the allowance or withholding of costs in this proceeding is found in § 6 of chap. 269 of the Laws of 1880, which is as follows : “ Costs shall not be allowed against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith or with malice. If the writ be quashed or the prayer of the petitioner be denied, costs shall be awarded against the petitioner, but the costs shall not in any case exceed the costs and disbursements taxable in an action upon the trial of an issue of fact in the supreme court.” The rule governing costs in certiorari proceedings generally (§ 2143 of the Code of Civil Procedure), has no application to this proceeding. People ex rel. Fairfield v. Coleman, 18 Abb. N. C., 246.

In the absence of a holding by the special term or by this court that the action of the assessors was grossly negligent or in bad faith or with malice, no costs under this statute can be permitted against them. People ex rel. Mann v. Peterson, 31 Hun, 421; People ex rel. Ogdensburgh, etc. Co. v. Pond, 13 Abb. N. C., 1.

The learned justice presiding at special term has, in his opinion, fully and completely exculpated these assessors from any negligence, bad faith or malice. He has written an opinion to the effect that they acted honestly and intelligently, and committed only an error of judgment, such as an honest person is liable to fall into. The costs of the relator have, as it has been stated above, under these circumstances, been admitted to be saved to him, although clearly enough under the statute, and under the decisions cited, they could not recover from these defendants. This has been done by a direction in this proceeding to the assessors to levy the same in the next tax levy and to pay the same over to the relator. We are unable to find any statutory or other authority for this part of the order appealed from.

The costs amount to $180.14, while the reduction of the tax is only $14.27. Yet there is no provision of the law by which the relator can be permitted to recover such costs except in the cases where it is shown that the assessors have acted with gross negligence, or bad faith or maliciously. The persons upon whom these costs are directed to be levied were not parties to this proceeding, nor was the village of Niagara Falls a party thereto. Under the statute, the controversy is solely between the aggrieved taxpayer and the assessors. In the absence of a statutory provision by which these costs may be collected in the way prescribed by this order, the direction to the assessors contained in this order must be deemed erroneous.

The examination of the evidence leads us to the same conclusion, reached by the special term, that the assessors acted fairly and honestly. Otherwise upon their appeal we might probably modify the order and charge the costs directly upon them personally.

The portion of the order appealed from should be reversed, but under the circumstances without costs.

Dwight, P. J. and Corlett, J., concur.  