
    In the Matter of the Application of John E. Corwin.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1892.)
    
    1. Taxes—Certiorari to review assessment—Inequality.
    The general term reversed an order of special term denying a motion to quash and dismiss a writ of ceriiorcm obtained by relator under the act of 1880, chap. 269, to review the action of the assessors of Middletown in making up their assessment roll for 1891, and granted the same on the ground that relator did not personally appear before the assessors upon the ■day for hearing grievances, but appeared by attorney, although no objection was made by the assessors, they receiving and filing his affidavit, interrogating him, receiving an admission from him which rendered examination of relator unnecessary, and gave him notice of their final.action. Held, error; that the assessors waived any objection to the appearance by attorney, even if it would have had any force had it been promptly made, and the appearance was sufficient.
    9. Same—Appeal—Code, § 8815.
    Chapter 269, Laws of 1880, was designed to afford a remedy where none before existed or where the previous remedy was, at the best, inadequate, and if the taxpayer brings his case within the statute, the granting of a writ of certiorari is not discretionary, but he is entitled to it as a matter of right, and the reversal of such an order by the general term is appeal-able to this court.
    S. Same—Limitation.
    Nothing which the assessors or the common council might do, or omit to do, would be available to abridge. the time within which the relator might under the statute apply for judicial redress. The assessment roll must remain in suspenso for fifteen days for the purpose of review, after its completion and delivery.
    
      4. Same—Petition.
    Relator’s petition alleged that all the other assessments upon the roll were made at a lower proportionate valuation than the assessment of relator’s property, and that his assessment was wholly out of proportion to-the basis of valuation adopted by the assessors in making the other assess- < ments, etc., and asked that it be corrected so as to be in accordance with, law and to conform to the other valuations. Held, sufficient.
    Appeal from judgment of the supreme court, general term,, second department, reversing order denying motion to quash a writ of certiorari to review an assessment of personal property and from order referring the matters in issúe.
    
      Wm. Vanamee, for app’lt; Henry W. Wiggins, for resp’t.
    
      
       Reversing 46 St. Rep., 148.
    
   Maynard, J.

The relator obtained ex parte a writ of certiorari at special term, under the act of 1880, to review' the action of the assessors of the city of Middletown in making up their assessment roll for the year 1891.

The principal ground of error complained of, and the only one now insisted upon, was the inequality of his assessment of personal property, compared with the property assessments of other taxpayers of the city. Upon the return to the writ the respondents made a motion to quash, which was denied, and an order of reference granted to take proofs upon the matters in issue. The-general term reversed the order of the special term, denying the-motion to quash and dismiss the writ, and granted the motion, with costs; and the case is now here upon an appeal from that order.

The order is silent as to the grounds upon which it was made, but it appears from ‘the opinion of the court that the writ was quashed because the relator did not personally appear before the assessors upon the day for hearing grievances, but appeared by attorney, which was considered insufficient to entitle him to a review under the act of 1880.

The respondents contend that the order of the general term is; not appealable, for the reason that it was discretionary, and therefore, not reviewable by this court, and cite the provisions of the Code, §§ 190, 1337, 2127, and The People, etc., v. Board of Tax Com’rs, 85 N. Y., 655, and People, etc., v. McCarthy, 102 id., 630; 2 St. Rep., 546. These were cases of the allowance of a common law writ of certiorari; the granting or refusal of which by the supreme court has always been held to be so far discretionary that an order of that court quashing the writ is not reviewable here unless it affirmatively appears that the discretion of the court was not exercised in granting it. Section 2127 of the Code merely embodies the pre-existing practice of the courts upon the subject. But this is a statutory proceeding under an act passed after the-provisions of the Code are to be deemed to have been enacted, § 3355; and it was held by this court in the People, etc., v. The Assessors of Greenburgh, 106 N. Y., 671; 8 St. Rep., 709, that this act regulates the review of assessments in towns, cities and villages by certiorari, and renders inapplicable to such cases the-general provisions of the Code relating to such proceedings. It-was designed to afford a remedy where none before existed, or where the previous remedy was, at the best, inadequate; and if the taxpayer brings his case within the statute, the granting of the writ is not discretionary, but he is entitled to it as a matter of right.

The objection is also urged, that the application for the writ was not made in time. The charter of the city of Middletown required the assessors to make up the assessment roll; give notice •of the meeting for the hearing of grievances; correct the roll, and ■deliver it to the city clerk, on or before the third Tuesday of July. The record shows that bn June 18th they gave notice that they had completed the roll for the year 1891, and left a copy with the ■city clerk, where it might be seen and examined by any person interested until July 10th, on which day they would meet to review their assessments, on the application of any person aggrieved. On July 10th they met and heard the complaints of parties deeming themselves aggrieved, and on July 16th made oath to the roll and filed it with the city clerk, and on the same day the common council adopted a resolution confirming it.

Section 9 of the act of 1880 provides that when the assessors shall have finally completed and verified their roll, they shall deliver it to the city clerk ; and that it shall remain with such clerk for a period of fifteen days for public inspection; and that the assessors shall forthwith give public notice of the final completion ■of the roll, the officer to whom it has been delivered and the place where it will be open to the public inspection; but it does not appear that these requirements of the law were observed in the present case. It is further provided that application for the writ must be made within fifteen days after the°completion and delivery of the roll and the giving of such notice, but that such time shall not begin to run until such notice is given. Nothing which the assessors-or the common council might do, or omit to do, would be available to abridge the time within which the relator might, under the statute, apply for judicial redress. If the notice was not given, it has been held that such time was unlimited. The People, etc., v. Haupt, 104 N. Y., 877 ; 5 St. Rep., 770.

The authorities cited by respondent’s counsel are cases which arose before the enactment of the law of 1880. Under the practice then prevailing, the writ must have been sued out and served upon the assessors before they had parted with the roll; which was generally impossible, as the roll would be completed and delivered on the same day, as it was in this case. The taxpayer could not anticipate the action of the assessors, and service of the writ upon them before they had entered the judgment sought to be reviewed would be premature. This was one of the evils undertaken to be remedied by the legislation of 1880, which requires the assessment roll to remain in suspenso, for the purposes of review, for the period of fifteen days after notice is given of its completion and delivery.

In The People, etc., v. Assessors of Niagara, 40 Hun, 228, it seems to have been held that it was too late to apply for the writ .after the assessors had delivered the roll to the supervisor of the. town, and after its delivery by him to the board of supervisors. The opinion of the court does not refer to the act of 1880, and its provisions do not appear to have been considered, and there is nothing to indicate whether the fifteen days limitation had not actually expired. The cases referred to in the opinion either arose before the passage of the act, or are cases of special assessments, and so far as the decision may be construed to hold that the writ cannot issue in any case after the assessors have parted with the roll, it is in. conflict with the plain provisions of the statute and cannot be approved.

The relator was not concluded by the action of the common council in confirming the assessment roll. That body has no power under the city charter to correct the roll, except such as is possessed by boards of supervisors with respect to town assessment rolls, and, hence, it could not afford the relator the relief to which he claims to be entitled.

The general term quashed the writ in this case for the reason that the relator appeared before the assessors upon "the day appointed for the hearing of grievances by attorney and not in person. No such objection was made by the assessors at the hearing. They recognized the appearance of- the attorney; received and filed his affidavit; interrogated him upon the subject of his client’s grievance; took an admission from him, which rendered an examination of the relator unnecessary; made a reduction in the real property assessment, and gave the attorney notice of their final action and it might properly be held that they had waived any objection of that character, even if it would have had any force had it been promptly made. People v. Hicks, 40 Hun, 598; 2 St. Rep., 294.

Whatever effect might be given to the failure of the taxpayer to appear before the assessors at their last meeting and there seek a correction of his assessment, the point is not involved upon this appeal. Under chap. 176 of the Laws of 1851, as amended by chap. 536 of the Laws of 1857, it may be that in a proper case the assessors might insist upon the personal appearance and examination of the taxpayer, if necessary. If he is seeking to escape taxation because he does not possess taxable property of the value fixed by them, or because of non-residence, or for some other reason which is peculiarly within his personal knowledge, there might be great propriety in requiring him to appear in his own person in order that the assessors might probe his conscience by an examination under oath as to the extent of his possessions, or as to any other material fact of which he alone may be able to give the most reliable information. They cannot be compelled to act upon hearsay testimony, but have the right to demand the best evidence obtainable. But even in such cases, if a personal appearance is impracticable, on account of unavoidable absence, or sickness, or other sufficient cause, the taxpayer cannot be denied the opportunity to present his grievance bv attorney, with the proofs to support it. Here there was a sufficient appearance by attorney. He admitted the existence of all the facts which it was material for them to know with respect to the relator’s property; and they did not ask or require a personal appearance or examination, for the obvious-reason that it would be the performance of an idle ceremony. He therefore omitted nothing which, under any reasonable construction of the tax law, he was bound to do in order to invoke the remedy provided in the act of 1880. '

Objection is made to the sufficiency of the petition upon which the order for the writ was granted, which we think is based upon a misconception of the office of a petition in such a proceeding. It 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. It may well be questioned whether an averment in the petition in the words of the statute would not be sufficient to confer jurisdiction, Rochester R. R. Co. v. Robinson, 183 N. Y., 242; 44 St. Rep., 872, but this petition goes farther and alleges that all the other assessments upon the roll are made at a lower proportionate valuation than the assessment of relator’s property, and that his assessment of personal property is wholly out of proportion to the basis of valuation adopted by the assessors in making the other assessments on. the roll and bears no relation to their general method and system in arriving at their assessments of personal property, and does not conform to the valuations and assessments applied by them to other personal property. ■ His demand for relief is that his assessments be declared Unequal, and be corrected in such manner as shall be °in accordance with law, and so as to make them conform to the valuations of other property on the roll, and so as to secure equality of assessment. He is not seeking to obtain a reduction of his assessment by showing that in a single instance, or that even in occasional instances, other property has been- assessed proportionately lower, which this court held in the People, etc., v. Carter, 109 N. Y., 576; 16 St. Rep., 367, would not entitle him to the remedy providéd in the act of 1880; but he proposes to bring himself within the rule laid down by Judge Andrews in that case; which requires him “ to 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.”

The order of the general term should be reversed, and the order of the special term affirmed.

All concur.  