104 N.Y.S. 353 | N.Y. Sup. Ct. | 1907
The first contention of the relator is that section 54 of the Tax Law (Laws of 1896, chap. 908), under which the defendants acted in making such assessment) is unconstitutional in that it provides for an assessment without notice, or that, if notice is provided for, such notice is an idle form as at the hearing the -board is required to assess the property at a valuation previously fixed and determined by statute. If either of these contentions is well founded, the statute is void. In the examination of the statute the whole statute should be read together, and regard should be had to the purpose which the Legislature intended to effectuate. The purpose of the Legislature was to provide a method by which taxes which had been erroneously or illegally assessed might be legally
As to original assessments it is provided (both as to . lands of residents and lands of nonresidents) that opposite the land they shall “ set down the full value ” of such property. No hearing has yet been had, but a value is adopted and “ set down ” and no one contends this portion of the statute is unconstitutional because a hearing is provided for and upon that hearing the value is “ fixed,” i. e., finally determined upon. The procedure, as I construe the statute, is the same under section 54. A value is placed opposite the property, either that of the previous year or one adopted by the board, and then before “fixing such valuation the Board of Supervisors shall give to the owners of such property a notice of at least five days and an opportunity to be heard; and, on such hearing, the Board shall have as to such property, all the powers of assessors of a tax district in reviewing and correcting an assessment roll.” -It will be seen that the word “ fix ” is used in the sense of “ finally determine upon.” The original values in the assessment rolls the statute loes not refer to as “fixed.”
At the time of the .original assessment, the lands in question having constituted a part of the county of Queens, and said taxes having been-levied by the board of supervisors of Queens county before the county of Nassau was set off from said county of Queens, said lands having been included in the county of Nassau, it is now claimed by the relator that the board of supervisors of Nassau county have no power to make such reassessment, claiming that such reassessment is in effect a review of the action of the board of supervisors of Queens county. With this contention I cannot agree. The action of the board of supervisors of Queens county is not reviewed, changed or altered by this reassessment. All the supervisors of Queens county
The reassessment is also attacked upon the ground that the valuation of twenty dollars per lot is more than the full value of such lots. While upon the proof before me I would be inclined to find that that is not more than the full value, I do not think it necessary to do so. The proof adduced satisfies me that the relator, under such valuation, is required to pay no more than his share or proportion of the taxes for that year, or, in other words, that such assessment is not proportionately higher than that upon the other property upon the same roll, and therefore, even if such value is greater than it should be, affords no ground for vacating such assessment. People v. Carter, 109 N. Y. 576.
I think there is further reason why the relator cannot avail himself of any alleged inequality. The section which authorizes the presentation of a petition for a writ of certiorari (§250, chap. 908, Laws of 1896) provides that such petition must show “ that, application has been made in due time to the proper officers to correct such assessment.” That application must have been to correct the very error now complained of. Application cannot be made to the assessing officers to correct some errors and then, upon their refusal, a review had by certiorari of other errors. These proceedings do not show that, at the time of the hearing before the board of supervisors, the relator made any objection to the assessment by reason of over-valuation, or discussed that question at all. He at that time apparently rested his entire claim upon the grounds hereinbefore discussed.
The defendants are entitled to judgment dismissing the writ, .with fifty dollars costs.