
    The People ex rel. The Manhattan Railway Co., Resp’ts, v. Michael Coleman et al., Commissioners of Taxes, etc., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. 'Laxes and assessments— Certiorari— Stay of proceedings—Code Civ. Pro., § 2131, has no application to proceedings under Laws 1880, chap. 269.
    It is provided by Laws 1880, chap. 269, § 2, that a writ of certiorari allowed under that act shall not stay the proceedings of assessors or other persons to whom it is directed, or to whom the assessment-roll may be delivered to be acted upon according to law, Held, that Code Civ. Pro., § 2131, authorizing a stay of the execution of a determination pending a certiorari had no application to the matters covered by the act above quoted.
    .2. Same—Return of excess—Laws 1880, chap. 269, § 8, conclusive as to MANNER OF OBTAINING.
    Laws 1880, chap. 269, § 8, provide and define the proceeding through which the return of any excess of payment of an assessment shall be obtained. Held, that the provision was conclusive, and that there was no authority for an order directing a stipulation for the return of so much money as it directed a relator to pay, as a condition of a stay of proceed- . ings in case the amount should exceed the tax which it was liable to pay.
    
      Appeal from an order directing a reference, to take proofs and return them to the court under a writ of certiorari issued pursuant to chapter 269, of the Laws of 1880, and for a stay of proceedings, etc.
    
      George S. Coleman, for app’lts; Julien T. Davies, for resp’ts.
   Daniels, J.

The relator has sued out and prosecuted this writ of certiorari to be relieved from the assessment of its personal property, for the purpose of taxation. An application was made to the commissioners to vacate the assessment on the ground that the relator had invested $26,-827,500, in United States bonds. And an examination was had before them under section 820_, chapter 410, of the Laws of 1882, and upon the facts elicited by that examination the application of the relator was rejected.

In support of the writ it has been alleged that the assessment was illegal; and, also, that it was made upon a valuation exceeding that adopted for the assessment of other similar property m the city of New York. An application was made to the court at special term for a reference to take further proof establishing the alleged illegality and excessive assessment. This application was resisted on behalf of the respondents, for the reason that the examination before the commissioners had been quite extended, and the objection of inequality in the assessment could not be raised by the relator. The latter objection was placed upon the language of chapter 311 of the Laws of 1885, amending section 821 of chapter 410 of the Laws of 1882. By this amendment the grounds upon which a writ of certiorari to review or correct an assessment, may be issued in the city of New York, is that of alleged illegality, or over-valuation. On the part of the relator, however, it has been objected that this act is a violation of section 1, article 14 of the constitution of the United States, so far as it has declared that no state shall deny to any person within its jurisdiction, the equal protection of its laws. Whether this amendatory act is liable to this objection, inasmuch as it has been made applicable to all assessments in the city of New York, is. certainly to say the least of it, a matter of very great doubt. But on an application of this description that doubt should not be solved, for the evidence upon which the objection has been taken to the act, is no part of the case; and the hearing before the referee to obtain it, cannot be either prolonged or extensive. Neither should the relator be deprived of giving further evidence, if it shall be able to do so, concerning the alleged investment made in United States bonds. For these reasons the reference itself cannot be held to have been so entirely unwarranted as to require or justify a reversal of this part of the order.

But by another portion of the order, which was made a stay of the collection of forty per cent of the tax imposed upon the relator in consequence of the assessment was made. This stay was entirely without authority, for as the writ was issued under the act of 1880, it was subject to all the restraints mentioned in this act. And one of those restraints is that declared by section 2 of the act that, ‘ ‘A writ of certiorari allowed under this act shall not stay the proceedings of assessors or other persons to whom it is directed, or to whom the assessment-roll may be delivered, to be acted upon according to law.” The stay is stated to have been made, not under the authority of this act, but under that of the Code of Civil Procedure. But the authority given for a stay by section 2131 of the Code is inapplicable to this proceeding in consequence of the prohibition contained in the act of 1880. And this construction, if it needs any authority, whatever, is supported by People v. Assessors of Greenburgh (106 N. Y., 671; 8 N.Y. State Rep., 709).

The order further provided that a stipulation should be entered into on behalf of the respondents for the return to the relator of so much of the money as was directed to be paid as the condition of the stay in case it should, in the end, exceed the tax which the relator was liable to pay.

By section 8 of chapter 269 of the Laws of 1880, the proceeding has been provided for and defined, through which the return of any excess of payment shall be obtained-, and that proceeding, as the act has created and defined it, seems to be conclusive.

So much of the order, therefore, as required the stipulation, and provided for the refunding of the money, was also unauthorized and cannot be supported. As to the reference ordered to take proof, the order should be affirmed, but in all other respects it should be reversed, without costs to either party.

Van Brunt, P. J., and Brady, J., concur. •  