105 N.Y.S. 134 | N.Y. App. Div. | 1907
The reason .for the reduction in the relator’s assessment was inequality in that it was “ made at a. higher proportionate valuation than the assessment of other property on the same roll by the same officers.”' (Tax Law, § 250.).- The petition alleges such inequality as the basis of this proceeding and specifies numerous instances in which such inequality exists and the extent, thereof. -
The appellants urge that the complaint' filed with them on “grievance day” under section 36 of the Tax Law and which constitutes the basis’óf this proceeding was insufficient. They acted thereon and partly complied therewith by reducing the assessment. The purpose of this statement was to apprise them of the nature of tile relator’s grievance. If- the statement were insufficient they should have objected thereto when it was filed and when it might have been corrected. It is- now too late to raise such objection. (Matter of Corwin, 135 N. Y. 251)
It is also insisted that said petition is defective because it is on' information and belief and does not set forth the sources and grounds thereof. I think the petition complies "literally with section 250 of the Tax Law. Allegations as to the value of real property azre necessarily to a large extent matters of opinion and belief. Were such allegations not in form stated to be on information and belief they would nevertheless be such- in fact although not’ thus expressly* stated. There is nothing in- the statute indicating that a. petition in a proceeding of this nature may not be- on information and belief or indicating that when one or more such allegations therein are thus stated the. sources of the information and the grounds of the belief must also be stated. The. purpose bf the petition -is to set in motion the machinery of the Tax- Law to- review the proceedings of the assessors. The questions involved are not determined on the return as in ordinary certiorari proceedings, but it is provided by the statute that evidence may be taken eifher by the court or by a referee,appointed for that purpose and a determination is made on such testimony and not necessarily on the petition, writ and return. (Tax Law, § 253; People ex rel. Thomson v. Feitner, 168 N. Y. 441, 456; People
The relator in its petition alleged that the full value-of the property was $150,000. It is now claimed that it was error to allow proof that it was in fact worth less than that amount and that a finding by the referee and court that it was worth $125,000 is erroneous in view of such allegation in the petition. I suppose that even the owner of property may be mistaken as to its value. The allegation of value in the petition while having the force of an admission as against the petitioner is not conclusive. The appellants have not been misled or prejudiced thereby. What has been heretofore said as to the analogy between the petition and'a pleading in an action applies here also. There can be no1 question as to the power of the court to amend the petition if necessary as a complaint might be amended to conform to the proof. ■ A motion to that effect was made at Special Term and denied. But if improperly denied the discrepancy between the petition'and the proof should either be disregarded on appeal or the petition amended to conform to the facts. (Chatfield v. Simonson, 92 N. Y. 217.) It has been held that the return in this class of cases does not conclude the assessors. (People ex rel. Thomson v. Feitner, supra; People ex rel. Ulster & Delaware Railroad Company v. Smith, supra; People ex rel. Dexter v. Palmer, supra) If the return does not conclude the assessors it follows by a parity of reasoning that the petition does not conclude the petitioner.
It is further urged that the order of reference did not authorize the referee to report findings of fact and conclusions of law. It is true that the order did not in terms go to that extent. That, however, is the requirement of the statute. And if we assume that
Alleged errors by the referee in ruling on the admissibility of tes-" timony are also urged. None of them are of sufficient importance to call for discussion. The strict'rules of evidence applicable to trials do not prevail - in this kind of proceeding.- (People ex rel. Warren v. Carter, 47 Hun, 446; People ex rel. Wallkill Valley Railroad Co. v. Keator, 36 id. 592, 596.)
The merits of -the determination are not in any way questioned on this appeal. AH'of the objections are directed against the practice and form of procedure adopted. After a careful examination we are satisfied that the determination of the court below-was right and that no substantial errors were committed in reaching- such determination.
This is an opportune time to comment on the custom, much too prevalent among assessors of assessing real estate at. less than its full value in ' direct violation of the statute. Hot only do assessors in following such custom violate their official duties, but consciously or unconsciously they.swear to an untruth when in the verification of the assessment foil, which is required, they make.oath that they 11 have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full, value thereof.” (Tax Law, § 37.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.
Amd. by Laws of 1899, chap; 712,— [Rep.