People ex rel. West Shore Railroad v. Johnson

29 A.D. 75 | N.Y. App. Div. | 1898

Follett, J.:

Section 36 of the Tax Law provides: “Such complainants (person aggrieved) 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.”

This section defines the procedure to be taken by persons or corporations who deem themselves aggrieved by over or unequal valuation, and, like all laws of procedure, is not to be strictly construed so as to deprive persons aggrieved of the remedy, but so construed as to advance the remedy given.

It will be observed that the statute does not require that, in case the statement is verified by an agent of the taxpayer, he must have personal knowledge of the facts, hut simply that he must have knowledge of the facts, and if the section be construed that the agent must have personal knowledge of the facts contained in the statement, it will he 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. It is not probable that there is any officer or person connected with either of the relators who could, of his own knowledge, state the cost of the railroad in the town of Riga, or the present value thereof. In determining -the cost or present value an affiant would necessarily be compelled to rely on statements made by others, by engineers, and by various officers keeping the records of the corporations; the truth of these records and statements would not he within the personal knowledge of •the officer having charge of them, hut would necessarily he made up from information received from others. In the case at bar the affiant stated the sources of his information, and, while the sources might have been more fully stated. I think the statement was sufficient to confer jurisdiction upon the court to grant the writ.

The construction of the section contended for would deprive an individual illegally assessed, -but unable by absence or sickness to verify a statement, of any redress, as it would be unusual for an agent to have personal knowledge of the cost or value of his principal’s property.

Again, it is positively averred by the attorney and agent of the relators that the statement verified by him August 17, 1897, was received on that day by the assessors, without objection to its form or sufficiency, and that the assessors did not require that any of the relators’ officers or other agents should appear before them for examination. On the contrary, the assessors in their return stated that they requested the attorney to produce witnesses to testify in respect to the truth of the statement filed.

This presented a question of fact which should have been determined by evidence, for, in case the statement was received without objection and without requiring the production of witnesses, the assessors must be deemed to have waived any other or different statement. (Matter of Corwin, 135 N. Y. 215.)

The order dismissing the writ should be reversed, with fifty dollars costs against the respondents to abide the event.

All concurred.

Order dismissing the writ of certiorari reversed.