
    The People ex rel. The Delaware and Hudson Canal Company, App’lt, v. Abram Becker et al., Assessors, etc., of Sharon, Resp'ts. Same, App’lt, v. Peter Traver et al., Assessors, etc., of Seward, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 21, 1889.)
    
    Taxes and assessments — Certiorari—Laws 1880, chap. 369.
    A writ of certiorari issued under chapter 369, Laws of 1880, to review an assessment, should not he limited so as to require a return only as to questions raised before the assessors and so as to prevent relator from raising any other material question on the return.
    Appeal from order modifying writs of certiorari so as to require no return by the assessors as to inequality of assessment, as to overvaluation, as to whether other property on the roll was assessed at full value, and so as to prevent the relator from raising on said return any other question than that of legal exemption under chapter 255, Laws of 1860.
    
      On grievance day, August 21, 1888, the relator filed two affidavits with the assessors which showed that the earnings of the O. Y., S. and A. R. R. Co., of which it was lessee, and for which the assessment in question was made, were not sufficient to cover its operating expenses and that there was a deficit; that under section 10 of chapter 255, Laws of 1860, the company was to he exempt from taxation until it was able, from the net earnings of said road, to make a semi-annual dividend of three per cent on its stocks.
    
      Edwin Young, for app’lt: Hobart Krum, for resp’ts.
   Learned, P. J.

In each of these two cases a writ of certiorari under chapter 369, Laws of 1880, had been issued to review assessments of relator’s property.

The defendants moved on notice to modify the order and the writ, so as not to require any return as to the inequality of the assessment in question as compared with other assessments and so as to prevent the relator from raising on the return or in the proceedings any other question than that of the legal exemption from taxation under chapter 255, Laws of 1860. The order and writ were so modified and the relator appeals.

The affidavits of the relator which had been presented to the assessors were used on the motion. The affidavits of the assessors and the clerk were produced, stating that no question was raised before them except that of exemption and that no claim of unequal assessment was made. In opposition an affidavit of a clerk in the office of relator’s attorney was produced, stating that he did also protest against the assessment as illegal by reason of overvaluation.

It would seem that the learned justice who modified the order must have held that the weight of the evidence was that no objection was taken other than that of absolute exemption. It may be admitted that that is the prominent matter in the affidavits-used before the assessors.

The petition for the writ of certiorari states the alleged illegality as based on the exemption claimed, and also on the unequal valuation.

The act of 1880, above mentioned, undoubtedly gave an entirely new relief. It did not provide for a mere review of the action of the assessors, but for an examination of the whole matter, - and for what was practically a new assessment by the supreme court in case the relator showed that he was aggrieved. There was, to be a re-hearing on new evidence, and the return of the assessors was not to be conclusive on the matter.

The act was undoubtedly passed because the legislature saw that the action of assessors was often arbitrary, and that under existing laws there was no redress against the most unjust assessments. It was a remedial statute, and while it may impose some labor on the court, it has already operated to redress injustice and probably in some degree to prevent unequal assessments. •

In the enforcement of the rights given by this act, it may perhaps be a sound principle that the court shall refuse relief where the relator has not made his claim at the proper time to the assessors themselves. It may he reasonable, that the court should require that the aggrieved party should first seek his redress from the assessors, so that they may have the opportunity to correct any error which they have made, and that the court may not be unnecessarily burdened. People ex rel. v. Commissioners, 99 N. Y., 254; People ex rel. Hoffman v. Ousterhoudt, 24 Week. Dig., 101.

That, however, is not a condition laid down in the statute, which specifies the 'cases in which the writ shall be granted.

And we do not think it necessary to decide that question on this appeal The defendants have in the present instance limited the effect of the writ by proof made by affidavits, and these affidavits are in conflict with the affidavit of the relator. It seems to us that this matter should not be determined in this summary manner. The question what shall be the extent of the relief given by the court is one affecting the merits. It should properly be determined on the return to the writ, and on the evidence taken in the proceeding.

If this were only the ordinary writ of certiorari, the court would not determine what relief it should grant until it had heard the return. It would not limit the matters to be returned, as has been done in this instance.

Still more, when, under this writ, the court does not merely review the proceedings upon the proof before the assessors, but takes new and independent proof, it would seem best that all the proof should be produced which the parties can show to be proper.

Indeed, the circumstance that new proof is to be taken by the court would seem to lessen the force of the rule above mentioned, that objections must be made, in the first instance, before the assessors; for if this court is to investigate for itself in any case the matter of unequal assessment, it does not seem that much can be gained by having the party ask the assessors not to assess him unjustly. If some peculiar privilege or right were to be asserted, there would be more reason for calling the attention of the assessors to it; but the duty of making an equal assessment is well known to the assessors, and the party is not limited in this, writ to the evidence which he produced before'them. As he is not limited to that evidence, the argument of the defendants seems to be simply that he must object to the assessors that his assessment is too high in proportion to others; and such objection would seem to be of no special use.

But, without passing on the question which may come up when these writs shall be heard on the evidence taken in this court, we are of the opinion that the writs themselves should not be limited as has been done by the orders appealed from.

Order modifying writs reversed, with ten dollars’ costs and printing disbursements, and motion to modify denied, with ten dollars’ costs in each case.

Putnam and Fish, JJ., concur.  