33 N.Y.S. 926 | N.Y. Sup. Ct. | 1895
The respondents, in their return to the writ of certiorari in this matter, state, among other things, that they assessed the relator’s property “at its true value, as it would be appraised in the payment of a just debt, due from a solvent debtor.” The case was not heard at special term upon the petition of the relator and the return, but a reference was awarded, and there was proof taken before the referee, tending to show that the real estate of the town of Waverly was not assessed at its full and true value in the year in which the assessment in question was taken, but that it was that year assessed at about 35 per cent, of its real value. At the hearing before the referee the respondents introduced evidence, under the objection of the relator, that the relator’s property in question was not assessed at its full value, and proof was made by the respondents that the relator’s property, which was assessed at $4,800, was really worth from $10,000 to $12,000.
The first point urged by the appellant for a reversal of the order of the special term and the judgment entered in pursuance thereof is that the defendants, by their return to the writ of certiorari, made by them under oath, are estopped, and that the return is an estoppel of record against them, and that it was error to receive evidence of the real value of the relator’s property in contradiction of or at variance with the return, and that for the purposes of this proceeding the real value of the relator’s property must be taken to be the value as fixed by the relators in their return. At common law and under the Code of Civil Procedure (section 2138) a return seems conclusive upon both parties as well as the court. People v. Commissioners, etc., of Brooklyn, 106 N. Y. 67, 12 N. E. 641. But by chapter 269 of the Laws of 1880 it was provided that in the certiorari provided for in that act to review the correctness of an assessment—
*927 “If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall he made.”
In the case at bar a reference was ordered by the special term on the motion of the relator, and without opposition on the part of the respondent; and on such reference a large amount of testimony was taken, which, with the writ and return, seems to have been considered by the court at special term on the final hearing, the relator objecting to the consideration by the court of any evidence taken before the referee on the application of the respondents tending to increase the valuation of the relator’s property above the sum fixed in the assessment, which, by the return, the respondents had alleged was assessed at its true value as set forth in the return. If the respondents and the town, which they, as assessors, represented, are concluded by the return, then the receipt and consideration of such evidence by the court was error, for which the determination of the special term should be reversed. The question is therefore sharply presented whether the assessors, in this class of certiorari, are concluded by their return to the writ, or whether, when the relator, by refusing to adopt the conclusiveness of the return, obtains a reference, and thus opens the field to extraneous evidence, and thus by proof seeks to assail its correctness, can prevent the respondent from showing the property in question was undervalued in the assessment and return, for the purpose of showing that there was in fact no inequality in the assessment of the relator’s property as compared with other property in the town. The case discloses that the relator, on grievance day, appeared before the assessors, and sought to reduce the valuation of the property in question from $4,800 to $2,000; but it also appears that he refused to answer pertinent questions propounded to him by the assessors on that hearing, and his testimony on that occasion furnished the assessors no reliable data for determining the real value of his property; so that, unless the assessors are concluded by their return, there was apparently no impropriety, on the hearing before the referee, in ascertaining by proof the real value of this property.
We are referred to no case in which it has been determined that the return in a case like this is conclusive on the officers making it. The case of People v. Parker, 117 N. Y. 86, 22 N. E. 752, is not an authority upon this question. It is true that the court in that case, in discussing the effect of the act of 1880 on the writ of certiorari, uses this language: “In all this we observe an old writ, whose functions and character were well settled and understood, was applied to a new purpose, and molded so far, and only so far, as was necessary to accomplish the review desired.” This language, we think, falls far short of sustaining the contention of the relator that the assessors and town "were estopped by the return. Under the old writ, to which the learned judge refers, the relator would be concluded by the return. Under the modification he may attack it, and show the actual and relative value of the relator’s property as compared
“Not only may the court take testimony, or appoint a referee for that purpose, but such testimony shall constitute part of the proceedings upon which the determination of the court shall be made; that is, the court is to determine upon testimony to be taken. Thus the rule that the return is conclusive is swept away in this proceeding, and the court is to receive other testimony on which to determine whether the assessment is illegal, erroneous, or unequal.”
We are clearly of the opinion that the evidence offered by the respondents, tending to prove the real value of the relator’s land in question, was competent. That being so, the special term was called upon to consider the evidence upon the question of fact as to whether or not the relator’s property was unequally assessed as compared with other assessments in that town, and upon such examination and consideration that court has found against the relator. We think his finding is fully sustained by the evidence. The order and judgment appealed from must be affirmed, with costs. All concur.