People ex rel. Friendly v. Davenport , 104 N.Y.S. 332 ( 1907 )

Kellogg, J.:

The motion to- dismiss is based upon. the contention that the petition shows that all the assessments upon the roll are illegal, for the- reason that the assessors did not give the proper notices, did not complete the roll within the timé, .and for other reasons," and also that it appears that the relator wás added to the ■ roll after the assessors had. ceased to have the power to make additions to the roll. It may, however, fairly be assumed from the papers that a person examining the assessment roll would not discover that the relator’s name was added to it" after the roll was. completed, nor-any other fact tending to show that the roll" is invalid. It may fairly be assumed, • therefore, that the assessors undertook to make an assessment roll pursuant to the statute, and probably did make such roll, but in some respects, as a matter of fact, appearing outside of the roll itself, disregarded their dutiés and acted without authority.

“ The proceedings of the taxing officers in' imposing a tax are judicial in their nature (Mercantile Nat. Bank v. Mayor, etc., of N. Y., 172 N. Y. 35, 41), and to assimilate the result to a judgment, .with respect to objections based upon want of jurisdiction, or upon a lack of regularity in the official.proceedings, is logical. The one is as final a determination in its nature, as is the other; however differing, of course,-in the judicial character of the-tribunals and of their procedure. The act of 1880. (Chap. 269, Laws of 1880) authorized the- issuance of a writ of certiorari to review assessments, which might be illegal, erroneous or unjust, and we have held that that act became the only authority for such a review. (Mercantile National Bank v. Mayor, etc., of N. Y., supra.) ” (City of New York v. Matthews, 180 N. Y. 41, 46.)

It is held that the writ of certiorari to review an assessment is now a legal right and not a matter of discretion. “ It was designed to afford a remedy where none before éxisted, 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.” (Matter of Corwin, 135 N. Y. 245, 249; Mercantile Nat. Bank v. Mayor, etc., of N. Y., supra.)

Sections 250 to 255 of the Tax Law (Laws of 1896, chap. 908) áre practically re-enactments of the statute' of 1880 upon that subject. Section 250 provides that any person assessed upon any assessment roll, claiming to be aggrieved thereby, may present a verified petition setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or, if erroneous by reason of overvaluation, stating the extent of such overvaluation, or if unequal in that the assessment has been made at a higher proportionate valuation than ■the assessment of other property on the same roll by the same officers, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. The statute conferring this writ upon a person assessed assumes that there are assessors who have apparently made an assessment roll under the requirements of the statute, and then if -the person assessed is

aggrieved by the assessment he may - set up its illegality or inequality,. specifying the'grounds of the grievances, and that he is injured thereby, and thereupon lie becomes entitled'to the writ. The'statute does not limit the inquiry to certain grounds of alleged illegality, but it is available in any case where facts a,-re alleged bringing the petitioner’s ease within the -statute. In other words, he may. "claim .that the assessment'is invalid' for any reason. It was .very properly held in People ex rel. D. & H. C. Co. v. Parker (117 N. Y. 86) that certiorari was not the remedy to determine whether the persons purporting to make a roll were in fáct assessors or not, the court saying at page 88 : The function of the'writ of certiorari is to review the judicial action "of inferior officers or tribunals. It •assumes their existence and the fact of official action, but draws in question the'legality or correctness of that action. It is-wholly 'unsnite.d to a case in which there is no officer and no tribunal, and •where as a consequence, there could not have been any judicial action or anything to review.”-'

In. Van Deventer v. Long Island City (139 N. Y. 133, 137) the court assumes that the Pa/rker case above applies only to cases where there is a .valid, assessment roll in which some person has for some reason been illegally assessed or where the assessment is- excessive or unjust. But the case was decided upon other grounds and .is not, therefore, an authority as to tlie construction' of the statute or as to the real point decided in the Parker case. ■

It is probably true that merely calling a paper an assessment roll, which in form Or substance-is not such and does not upon its face appear to be an'assessment roll at all, is not a proper subject to be reviewed b.y certiorari. ' If a person’s name occurs Upon an assessment roll, biit in.such-a manner that there is 'clearly-nó assessment against him, he is'not aggrieved by such a harmless act, and certiorari is not- available to him. ■ Such a case is People ex rel. Eckerson v. Zundel (34 App. Div. 626). But here it was the duty of the assessors to make a valid roll ánd they attempted to perform tliat-duty and they are "not. in a very good position to ask the court-to assume that there is not any semblance or appearance of. regularity or validity to their official acts. The relator'ought not to be deprived of his relief and of the right to- rid himself of the judgment apparently Standing against him by hearing the assessors claim that they acted so very illegally that there is not enough of their acts to justify a review. It is not material to this inquiry nor to the relator’s rights whether other assessments upon the same roll are valid or invalid, or whether the whole roll is valid or invalid on account of matters' not appearing upon its. face. A person who finds his name upon an assessment roll apparently made pursuant to the statute and which seems, to be a judgment or a basis for a judgment against him for the amount of the tax levied or to be levied, has a right to his day in court by this speedy remedy which the statute has provided for him and may establish that such assessment is invalid. And if in destroying the assessment against himself he destroys it as to others or even against all persons assessed, it should not affect bis right to the statutory remedy. The order appealed from is, therefore, affirmed, with costs.

All concurred; Coohrane, J., in result; Smith, P. J., not voting.

Order affirmed, with costs.