People ex rel. Seelye v. Keefe , 104 N.Y.S. 154 ( 1907 )

Tbe following is the; opinion delivered at Special Term:

McLaughlin, J.:

The relators obtained a writ of certiorari to review an assessment . upon their property for the purpose of taxation. Upon the return of the' writ the respondents moved to dismiss the same, upon'the ■ ground that relief, if obtained at al.I, must, be by mandamus and -not by certiorari. ,

The' assessing board had jurisdiction, and acted, and, therefore, a mandamus would not lié to compel it to act in,any particular way. ' ' Certiorari, is the proper remedy to review its acts. . (People ex rel. Chambers v. Wells, 110 App. Div. 336, 34l; People ex rel. Bliss v. Feitner, 72 id. 45

The petition for the writ shows that the respondents assessed the property of the relators for the purpose of-'taxation at $5,100, and . that on theTst of August, 1906, they, by counsel, appeared before . the respondents and asked that such assessment be corrected by reducing the sanie to $1,000, and at the same time presented proof that ,all of the ¡iroperty assessed, except $1,000, was represented by bonds and mortgages upon real estate,-which had been in the year 1905 recorded, under the Mortgage Tax Law, and taxes thereon ■ paid to the 1st. of July, 1906, and that the application was. denied.

The return shows that by reason of the amount of property in the village of Glens-Balls-to be assessed, and the large.amount of work involved in the preparation and completion of the assessment rolls, the respondents were unable to complete it until-about the 1st - of August, 1906. . ..' ’

The Villagte Law (Laws of 1897, chap. 414, § T04, as amd. by Laws -of. 1905, chap. 300) provides that the- assessors of a village of the first or second class shall, on or before the first Tuesday in June, .prepare an assessment roll of property taxable within the village, in thé same manner and form as is required by law for the preparation of a town assessment roll Whether or not property .is taxable must be determined as of that date. The fact that the assessing board did not do what the statute directed it to do-could not be used as the basis of either increasing or diminishing an assessment, inasmuch as the assessment must be considered as made at the time limited for making the inquiry, viz., on or before the first Tuesday of June. (Mygatt v. Washburn, 15 N. Y. 316; Clark v. Norton, 49 id. 243 ; Westfall v. Preston, Id. 349; Ætna Ins. Co. v. Mayor, 153 id. 331; Matter of American Fine Arts Society, 6 App. Div. 496 ; affd., 151 N. Y. 621; Sexton v. Pepper, 28 Hun, 31.) The only changes which the assessing board is permitted to make after that date are simply to correct mistakes. (Boyd v. Gray, 34 How. Pr. 323.)

If the assessment in question be considéred made as of the time when it should have been made under the statute, then the relators were entitled.to have their assessment reduced to $1,000, inasmuch as all of the property assessed, over and above that .amount, was exempt under the provisions of section 292 of the Tax Law (Laws of 1896, chap. 908). added by chapter 729 of the Laws of 1905, and known as the Mortgage Tax Law. This statute was then in force and so continued until the 1st. of July, 1906. (Laws of 1906, chap. 532.) This conclusion is reached upon the assumption that tile assessment was intended tobe one in fact against the relators, and that the. material facts set out in the petition are not denied in the return as per concession made in open court and written • stipulation presented.

There is nothing to show that the respondents .in .making the assessment acted with gross negligence, in bad.faith, or with malice, and, therefore, they cannot be chargéd with, costs. The relators, however, are entitled to costs and disbursements against the village. (Laws of 1905, chap. 281, amdg. Tax Láw, § 254.) • ' •

The assessment, therefore, is reduced to the. sum of $1,000,. with costs and disbursements to the relators against the village of Grlens Falls. Such costs and disbursements, however, are not to exceed those < in an action upon the trial of an issue of fact in the Supreme Court.