
    In the Matter of the Application of Eliza B. Smallwood, Appellant, for a Mandamus against the Comptroller of the City of New York and the Deputy Collector of Assessments and Arrears for the Borough of Queens, Respondents.
    
      .Reduction, of an assessment—interest must be paid on the reduced amount—payment of the original sum under pi'otest and suing for the excess.
    
    An owner of real estate in the city of New York, who has secured in certiorari proceedings a reduction of his assessment for general municipal purposes, must pay the reduced amount together with the interest which has accrued thereon.
    
      Semble, that, where the assessment is erroneous, his remedy is to pay the assessment as originally assessed, under protest, and then to bring an action to recover the excess.
    Appeal by Eliza B. Smallwood from an order of the Supreme Court, made at the Queens County Special Term and entered in the. office of the clerk of the county of Queens on the 3d day of J une,, 1901, denying her motion for a writ of mandamus.
    
      George E. Blackwell, for the appellant.
    
      George 8. Ooleman, for the respondents.
   Woodward, J.:

The relator was the owner of certain real estate in the borough of Queens in the city of New York, which was assessed for taxation for the year 1899. Not being satisfied with the valuation placed upon the property, the relator instituted a proceeding by certiorari under the Tax Law (Laws of 1896, chap. 908) to review the same, resulting in an order entered July I, 1900, reducing the value complained of and directing that the tax extended against the original assessment should be corrected. On the date of the filing of the order the amount of the tax as reduced was tendered to the deputy collector of assessments and arrears in the borough of Queens, without interest, and was refused by him upon the ground that the amount tendered was insufficient for the reason, that interest had accrued thereon. The relator asked for a mandamus compelling the acceptance of the reduced assessment, without interest, and a denial of the motion brings the matter before this court upon appeal.

The learned court at Special Term hands down an opinion very Lully covering this case, and we feel called upon only to make a few -suggestions as to the public policy of the matter. The doctrine has .long been recognized that some part of an assessment may be sustained where irregularity or invalidity appears as to others, and when it can be ascertained, the portion which is sound and just may be upheld as unaffected by that which is invalid. (Matter of Merriam, 84 N. Y. 596, 606.) In the proceeding of the relator there •was no doubt that some portion of the ta,x was valid, the contention being that the assessment was unequal and unjust. The policy of the State requires that its taxes, levied and assessed for the purposes .of government, shall be promptly paid, and to this end concessions --are made in some instances for prompt payment or penalties- are -affixed for delays. In the case of the city of Hew York it is provided that there shall be a rebate if the taxes are paid on or before the first day of Hovember in any year (Greater Hew York Charter, Laws of 1897, chap. 378, § 915), and that interest shall be paid at the rate of seven per cent upon all taxes remaining unpaid on the first -day of January, “ to be calculated from the day on which said assessment rolls and warrants shall have been delivered to the receiver -of taxes to the date of payment.” (§ 916.) When the relator in her certiorari proceedings secured a reduction in her assessment she •presumptively gained all of the relief to which she was entitled; she .had reduced the assessment to a proper figure ; she had had the use •of her money during the pendency of the proceeding, and as to the -portion of the tax which it was her duty to pay, we can discover no .greater reason why she should be relieved from the payment of 'interest than any other person who had delayed the payment of his Laxes for the same length of time. There had been a valid assessment of taxes against her all of the time; the portion which was •'invalid has been set aside, and that which was valid was subject to -all of the rules of law which affected any other valid assessment ■(Tax Law, § 253), and the fact that this may have caused some inconvenience to an individual is no reason why the higher policy of the ‘State should be interfered with by an order of the court compelling the acceptance of a less sum from one person than would be -demanded from another. •

This is not the case of an assessment upon benefited property for a public improvement, where the assessment possesses none of the •elements of a completed charge upon the property as in Matter of Miller (24 Hun, 637), until the cost has been determined, but is a general assessment for the purposes of government, which does not depend for its validity upon the amount of money to be raised, but upon its value in comparison with other properties similarly located, ■Ox upon exemptions or other matters of that character. In cases of • public improvement the amount of the assessment depends upon the -cost of a particular work; until the cost has been ascertained there .is no basis on which the amount of the assessment may be based, •and it was in reference to this kind of a case that the court used the language quoted by the appellant from Matter of Pelton (85 N. Y. 651), and it has no bearing and is not controlling in the present case.

Interest is to be charged only from the date of the ascertainment •of the sum legally due and chargeable,” say the court in the case •cited. The petitioner until that time is not bound to pay anything on account of the improvement,” but the case is quite different where the petitioner, as' in the present case, has been legally ■ liable for the amount of taxes now assessed against her during all •of the time. The fact that she may not have been able to pay the -exact amount before the determination of the certiorari proceeding •does not relieve her of the penalty imposed for a failure to pay the tax legally due at the- time fixed by the statute. She might have paid the full amount of the assessment under protest, as pointed •out by the court at Special Term, and recovered the excess; and having elected to defer all payment until the determination of the •certiorari proceeding, she is not entitled to the interposition of the ■court to compel the acceptance of a sum which is less than others tunder a like delay would be compelled to pay.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  