159 N.Y.S. 778 | N.Y. Sup. Ct. | 1916
These two proceedings are brought to review by certiorari assessments for the tax of the year 1915, on a large number of lots in the tract of land known as Marlboro, in the borough of Brooklyn, city of New York.
The lots in question are comprised in 119 tax lots, of which 67 were owned by the Brooklyn Development Company, and the remaining 52 by the Harwood Beal Estate Association upon the 1st day of October, 1914. The tract of land in question is irregular in shape, but is bounded generally by Twenty-second avenue on the northwest, Sixtieth street on the northeast, Gravesend avenue on the east, and Kings highway on the south. It contains more than one thousand city lots, mostly un
The issues joined by the petitions and the returns to the writs were heard at the Special Term, evidence being given on behalf of the relators and respondents.
It was contended by the respondents upon the hearing and in their brief that the relators must not only sustain the burden of proof, but, in addition to that, they must overcome the presumption of correctness which attaches to the action of the defendants as a quasi judicial board, and show affirmatively that they have been aggrieved.
If I correctly understand this contention to require of the relators more than a preponderance of the proof that their property has been erroneously assessed because of its over-valuation by the respondents, then I do not agree with it. It is an inaccurate statement of the rule governing the action of this court in reviewing an assessment under section 906 of the charter.
That section prescribes plainly and explicitly the conditions under which a judicial review of any final determination of the board of taxes and assessments shall be granted by this court, and, when allowed, the
That article provides for a judicial determination by the court, either upon the petition and return or upon new evidence to be taken by the court or a referee, of-the question whether the assessment is illegal or erroneous or unequal for any of the reasons alleged in the petition.
This is a special proceeding, not a common law certiorari, and it is not conducted under the strict rules of the common law, either in the admission of evidence or otherwise. People ex rel. Walkill Valley R. R. Co. v. Keator, 36 Hun, 592; People ex rel. Warren v. Carter, 47 id. 446.
In the proceeding, the burden of proof is upon the party assailing the assessment to establish affirmatively its alleged inequality or excessiveness. People ex rel. Westchester F. I. Co. v. Davenport, 91 N. Y. 574; People ex rel. Osgood v. Commissioners of Taxes, 99 id. 154.
In the absence of evidence to the contrary, the assessors are presumed to have properly performed their duties in making the assessment. People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304.
It has been distinctly held that the remedy given to the property owner who is aggrieved by the action of the taxing authorities of the city of New York to review the final determination of the tax board by a certiorari proceeding taken under section 906 of the charter furnishes a remedy independent and different from the ordinary proceeding by certiorari. This was clearly pointed out by Judge Yann, in People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, where he says: "The special statutory writ now before us differs from its predecessors in one remarkable respect, in that it
Judge Edward T. Bartlett, writing for the Court of Appeals in People ex rel. Thomson v. Feitner, 168 N. Y. 441, on page 449, said: “ The scheme of assessment and taxation provided for the city of New York has no similarity to the general law applicable to the other portions of the State.”
It is, in effect, a new hearing, and the whole subject is before the court.
In People ex rel. Knickerbocker S. D. Co. v. Wells, 181 N. Y. 245, at page 251, the court said: ‘ ‘ This court has frequently held that the proceedings at Special Term, under a statutory writ of certiorari, are in the nature of a new trial. Judge Vann, in commenting upon this new procedure, said, ‘ Thus, the writ under consideration may be a writ of review, merely, and hence properly called a writ of certiorari, and it may be in the nature of a venire de novo, and utterly foreign in function to the writ of certiorari as known in the history of the law.’ (People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, 432.) ”
The return is not in this writ of review de novo conclusive upon the questions of fact stated therein. The
Under the rule thus enunciated it is the duty of the court to determine the issues which are raised by the pleadings, viz.: the petition and return, and this determination may be made upon the evidence produced by the parties, the burden of proof of the allegations of the petition not admitted by the return resting upon the relator. Under the pleadings in the present cases, therefore, and upon the evidence offered, the question to be determined is, whether the real property referred to in the petition has been over-assessed, “ i. e., valued at a sum greater than the sum for which each separately assessed parcel of real estate under ordinary circumstances would sell if it were wholly unimproved. ’ ’ The expression used in the charter (§ 899) has been held to require the assessors to assess the property at its actual value. People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304.
The relators claim to be aggrieved by the increase in the assessment for the taxes of the year 1915 over the assessment for the taxes of the year 1914 in respect of each of the tax lots referred to in their petition. The increase in the assessment so complained of is twenty per centum or over in 82 cases out of the 118 reviewed. In the remaining cases, the increase runs from seven to twenty per centum. These assumed advances in one year over the assessed valuation for the preceding year are defended largely, if not entirely, upon the theory that there was during that year an enhancement of the actual value of the lots in question due to the two factors which have already been adverted to, namely: first,
I think the necessary conclusion from the evidence is that the action of the deputy tax commissioner, who initiated these increases in the assessment, was based upon anticipatory, rather than mpon actual, increases in value. It is true that the expert called by the respondents testified to a large increase in the actual value of the lands in question, but this opinion was not based upon sales of lots in the Marlboro tract, except such lots or parts of lots as had been purchased or condemned by the Sea Beach Railway Company for the construction of its line, which sales did not furnish any fair criterion of value of the remaining lots in the tract. It is also true that the opinion evidence of the witness called on behalf of the relators was not, in all respects, logical, and it was not entitled to nor did it receive from the court undue weight in reaching the conclusion herein expressed.
The relators, in my opinion, have successfully met, in nearly all of the cases complained of, the burden rest
In accordance with the provisions of- section 294 of the Tax Law, costs are hereby awarded to each relator against the tax district represented by the respondents, to be taxed by the clerk in accordance with the provisions of that section.
Ordered accordingly.