People ex rel. Erie Railroad v. Webster

49 A.D. 556 | N.Y. App. Div. | 1900

McLennan, J.:

.No question is raised upon this appeal as to the sufficiency of the petition, but it is urged that the statement made by the respondent and filed with the assessors on “ grievance day ” is insufficient, is not in compliance with law, and was and is wholly ineffectual for any purpose, because it is not verified as required by law, and because it does not state in detail, or specifically point out, how or in what respect the assessment complained of is incorrect, and that, therefore, the relator is not entitled to review such assessment.

Section 36 of chapter 908 of the Laws of 1896 provides: “ The assessors shall meet at the time and place specified in such notice and hear and determine all complaints in relation to such assessments brought before thém, and for that purpose may adjourn from time to time. Such complainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect, which verification must be made by the person assessed or whose property is assessed, or by some person authorized to make such statement and who has knowledge of the facts stated therein. The assessors .may administer oaths," take testimony and hear proofs in regard to any such complaint and the assessment to which it relates. If not satisfied that such assessment is erroneous, they may require the person assessed, or his agent or representative, or any other person, to appear before them and be examined concerning such complaint, and to produce any papers relating to such assessment with respect to his property or his residence, for the purpose of taxation. * * * The assessors shall, after said examination, fix the value of the property of the complainant, and for that purpose may increase or diminish the assessment thereof.”

The statute only requires that the person verifying the statement, whether he be the person assessed or the owner of the property assessed, or other person authorized to make such statement, shall have knowledge of the facts therein stated. Such person is not required to have personal knowledge of the facts.' If that were required it would be practically impossible for any agent of a corporation, or even an agent of an individual, to furnish a statement which would comply with the statute. There is not a single fact stated in the statement in question which could be within the actual and personal knowledge of any officer or agent of the relator. It appears that the statement in question was made and signed by the tax agent of the relator; was verified by him, and he swears that the facts set forth in the statement are true, as he verily believes. The affiant does not give the sources of his information, palpably because, by reason of his office, he has more full and accurate knowledge as to the material facts stated than any other person connected with the relator could have.

In the case of People ex rel. West Shore R. R. Co. v. Johnson (29 App. Div. 75) a statement like the one in the case at bar was made by an agent of the relator authorized to make the same, and it was stated in the verification that it was made upon information and belief, and that the sources of information were letters received from the tax agent of the relator. It was held that the verification in that case was sufficient.

In the case at bar the tax agent of the relator, instead of sending the information in regard to the assessment to another, to enable such other to verify the statement, made the verification himself. If, in the West Shore Case (supra), information given to the affiant by the tax agent made him competent to verify the statement required by statute, it must follow that if the verification had been made by the tax agent having such information, it would also have been sufficient.

In case a corporation feels itself aggrieved on account of an assessment made upon its property, and desires to file a statement on “ grievance day,” pursuant to statute, with the board of assessors making the same, for the purpose of having such assessment reduced, or to enable it to review the same, the tax agent of such corporation will be presumed to have sufficient knowledge of the facts relating to the assessment of its property to make him competent, within the meaning of the statute, to verify such statement, and the sources of such knowledge need not be stated.

We think the court below properly overruled the objection of the appellants that “ the statement filed does not comply with section 36, in that it does not state in what respect the assessment is incorrect.” As we have seen, the statement filed with the assessors alleged :

“ 3. That the assessment of said company’s property in said roll is illegal, incorrect and erroneous, for the reason that the valuation placed on said property is excessive and greater than the full value of said property.

“ A That the assessment of said company’s property in said roll is illegal, incorrect and erroneous, for the reason that the valuation placed on said property is unequal and not in proportion to the valuations placed upon the other property set forth in said roll, but is in excess thereof, and is assessed at a higher proportionate valuation than other properties on the same roll.”

The statute provides: “ Such complainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect.”

Under the statute, if the error complained of is that the assess- . ment is unequal, a complainant filing such statement is not required^ ¡ to state therein the instances wherein the other property upon the roll has been assessed at a less proportionate valuation than the property of such complainant. Such requirement would involve the ¡ preparation of the case for trial at the time of filing the statement, which is the first step in the proceeding. In the statement in this case the broad fact is stated that the assessment complained of is illegal, incorrect and erroneous, for the reason that the valuation placed on the relator’s property is unequal, and not in proportion to the valuation placed on the other property set forth in the assessment roll. The statement made is as full as it could have been made, unless the relator, at the time, and before taking the j preliminary step of filing it, had taken pains to ascertain the value ;jof all the real property in the town.

! We think it was unnecessary to embody such facts in such preliminary statement; that the provision of the statute which requires the complainant to specify the respect in which the assessment complained of is incorrect, is complied with by stating that the property is assessed for more than its full value, or that the assessment is proportionately larger than upon all- the other property in the town. In other words, that the requirement of the statute is met by pointing out the error which is complained of, and that a statement of all the facts constituting such error is not required.

Section 1, chapter 269 of the Laws of 1880, provides: “ A writ of certiorari may be allowed by the Supreme Court on the petition * * * when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality,” etc.

In construing that statute, in Matter of Corwin (135 N. Y. 252), the court says: “ Objection is made to the sufficiency of the petition upon which the order for the writ was granted, which we think is based upon a misconception of the office of a petition in such a proceeding. It is in the nature of a pleading and only conclusions of fact need be stated, and not the evidence necessary to support them. The statute says that the writ may be allowed on the duly verified petition of the taxpayer, when the petition shall set forth that his assessment is unequal, in that it has been made at a higher proportionate valuation than other property on the same roll, and that he _J will be injured by such unequal assessment. It may well be questioned whether an averment in the petition in the words of the ■statute would not be sufficient to confer jurisdiction.”

In People ex rel. N. Y. C. & H. R. R. R. Co. v. Budlong (25 App. Div. 373), which was a proceeding under the act in question, the petition alleged that the valuation placed by the assessors upon the relator’s property was ninety-five per cent of its full value, and -that the valuation placed upon all the other property in the town. was only fifty per cent of its full value. A writ of certiorari was allowed on such petition, and a motion was made to dismiss the writ on the ground that “ it is not specified in the petition ‘ the instances; in which such inequality exists, and the extent thereof.’ ” The-court, at Special Term, dismissed the writ, hut the order was. reversed by the appellate court, which held that the allegations-contained in the petition were sufficient.

We think the rule may be stated to be that where a person assessed complains because his property is assessed proportionately higher than other particular pieces of property upon the same roll, he should specify such pieces of property and state their value; but where the allegation is that the property of the person complain- ' ing is assessed proportionately higher than any of the other property in the town (which is in effect the allegation in the case at bar), the valuation of all the different properties in the town need not be stated, or particular instances of value given. Such rule can work no hardship to the assessors, because, under the statute, they have power to require any additional information to be furnished or given by any complainant, if they deem it necessary.

The assessors, by receiving and filing the statement made and verified by the relator, without objection either to its form or substance, and receiving evidence in support of the allegations which it contained, waived any objection which might be made to the form of such statement, or because it was not sufficiently definite. (Matter of Corwin, supra, 251; People ex rel. West Shore R. R. Co. v. Johnson, supra, 79.)

We think the court had power to amend the writ of certiorari, as was done by the order appealed from. (People ex rel. Hasbrouck v. Supervisors, 135 N. Y. 522; People ex rel. Benedict v. Roe, 25 App. Div. 107; People ex rel. Brooklyn Elevated R. R. Co. v. Assessors, 10 id. 393; Matter of Winegard, 78 Hun, 62; People, ex rel. N. Y. C. & H. R. R. R. Co. v. Cook, 62 id. 303.)

The conclusion is reached that so much of the order as is appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

So much of the order as is appealed from affirmed, with ten dollars costs and disbursements.