81 N.Y.S. 73 | N.Y. App. Div. | 1903
Lead Opinion
The question involved in this appeal is-one of procedure. The relator was assessed by the commissioners of taxes and assessments of the city of New York the sum of $25,000 upon its property. Thereupon it made an application in due form for the review of this assessment, contending before the commissioners of taxes and assessments that it was exempt from all assessments whatever. In such application it presented to the board all of the grounds upon which it based its right to be relieved from taxation that it sets out and avers in the petition which forms the basis of this proceeding. The commissioners, after a hearing, determined that the relator’s assessment, instead of being too high, was too low and thereupon fixed
The doctrine of this case was followed and applied in People ex rel. Bronx Gas Co. v. Feitner (43 App. Div. 198). It was reiterated and applied in People ex rel. Thomson v. Feitner (168 N. Y. 441), and by this court in People ex rel. Broadway R. Co. v. Feitner (61 App. Div. 156; affd., by the Court of Appeals on the prevailing opinion below, 168 N. Y. 661). These cases decide that where application has been made to the tax commissioners for the reduction of an assessment and the commissioners have acted thereon adversely to the application, either in whole or in part, the person, •or corporation, aggrieved thereby becomes entitled to sue out a writ of certiorari for a review of such action, and upon return being made thereto by the commissioners, the relator becomes entitled as
The respondents, however, contend that the sole effect of these decisions, to which we have called attention, is limited to a case where the commissioners have failed to grant a hearing thereon; and in a case where the relator has appeared and presented to the commissioners a completed case, covering the whole subject-matter contained in the application, the relator has had his day in court and had no right to require the court “ to take testimony for the purpose of modifying, enlarging, varying, contradicting or confirming the testimony taken before the Board of Taxes.” It was said by this court in People ex rel. Bronx Gas Co. v. Feitner (supra): “ The statute giving to taxpayers the right to review assessments is a wholesome and beneficial one. Its purpose is to prevent favoritism and partiality on the part of the assessing power, and to subject all taxable property alike to its fair, just and proportionate share of tax. To accomplish this, it is made the duty of the court when facts are properly presented, to review the decision of the taxing body on the merits.”
In this case the court was speaking of the right with which the relator was invested, and if the right exists to have a review of the case he made before the commissioners upon the merits, then it cannot make the slightest difference whether proof was taken under the application which was made to the commissioners for a reduction of the tax, or whether it was omitted, and the question considered upon the facts as ■ set forth in the application. The hearing upon the merits must be.a rehearing of the case as made, and as the statute secures such right, the proceedings had before the commissioners in nowise modify or control it. As was said in People ex rel. Manhattan R. Co. v. Barker (supra), “ that determination is a revaluation and it may be a different valuation of the property assessed.” The learned counsel for the respondents cites in support of his claim People ex rel. Sutphen v. Feitner (45 App. Div. 542) and People ex rel. Greenwood v. Feitmer (77 id. 428). As we read these
In the present case the application made to the commissioners was as full and complete as the facts stated In the petition. It is annexed thereto and forms a part, thereof. Consequently the relator brought himself squarely within the terms of the statute and the decisions construing it. It became entitled, therefore, to a review of the assessment upon the merits and became entitled to lay before the court, or referee appointed under its direction, all of the facts which had been given before the commissioners and to offer such additional proof as was material to the issues as presented and deemed by the court to be necessary for a proper disposition of the matter.
It is said by the respondent, however, that the relator will not be authorized to changé his case as made before the commissioners, and that a taxpayer may not be permitted to make one statement to the commissioners and another to the court. This question, however, does not relate to any question of procedure, but bears solely upon the question as to- the force and effect which shall be given to the evidence after it is received, and will be disposed of upon the same
If these views be sound, it follows that the order appealed from should be reversed and a new hearing ordered to be had, with costs to the appellant to abide the event.
Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
Dissenting Opinion
I concur in the view expressed in the case of People ex rel. Zollikoffer v. Feitner (34 Misc. Rep. 299), that “ the special statutory writ not only permits a review of the jurisdiction and method of procedure, and an inquiry whether there has been a violation of any rule of law or any competent proof of all the essential facts, or a preponderance of proof against the existence of any of those facts, but also authorizes a redetermination of' all questions of fact upon evidence, taken, in part at least, by the Special Term, or under its direction, and thus what is called a review may become a proceeding in the nature of a new trial.”
I do not think, however, that it was intended that the relator should, as matter of right, have two trials, one before the commissioners and one before the court, my view being that where the facts have been fully and fairly presented before the commissioners, and they have reached a determination after the taxpayer has had his day in court, their determination is final. It is only where the determination of the tax commissioners is illegal or unequal or void, or is made upon insufficient evidence or is against the weight of evidence" or- arbitrary so that it appears that it was erroneous, that a rehearing or new trial may be had before the Special Term. I do not assent to the construction given to the statute that in every case as matter of right the relator is entitled to a rehearing. Such a construction would be burdensome in the extreme, would compel the Special Term to hear every application anew, would impair, if not
I, therefore, dissent.
Order reversed and new hearing ordered, costs to appellant to abide event.
Dissenting Opinion
I dissent. I do not think that the statute intended that the court should become an assessor in every case in which an application is made to it.