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Supreme Court, May, 1899.

[Vol. 27.

The return to the writ states, among other things, that the respondents directed the deputy tax commissioner, by whom the assessment had been made, to re-examine the property, and to report to them in writing whether or not the alleged grievance of the relator had any substance; that, subsequently, he accordingly reported that he had re-examined the property and that "the increases made in these valuations were made to conform to the general increase made in this section, and are fully justified by the market value of the property." The respondents then state that "Under these circumstances, and upon the evidence that we have before us, and the relator having submitted no evidence in support of his allegations, we determined that the assessment as originally fixed was just, and, therefore, confirmed it at that figure."

There are two grounds on which the relator contends that the assessment is erroneous, (1) by reason of overvaluation; (2) by reason of inequality, in that the assessment has been made at a higher proportionate valuation than the assessment of other real estate on the tax-rolls of the city for the same year.

With respect to the first ground, there can be no difficulty in coming to a conclusion. Overvaluation means in excess of the market value of the property, or, as expressed in section 889 of the Greater New York charter (chap. 378, Laws 1897), "the sum for which said property, under ordinary circumstances, would sell." It was, therefore, incumbent upon the relator to present to the tax commissioners some proof, or, at least, to make some averment with respect to the actual market value of his property, which would show that his complaint was well founded. It will be noticed, however, that nothing of the kind was done. His application, while generally claiming an overvaluation, omits in its specification of facts any reference to actual market value. All that he states on the subject is that the market value of the property has not increased since 1895, when it was assessed at $57,000, and that the assessment was increased to $69,000 for the year 1896. An examination of the petition on which the writ was granted shows it to be similarly lacking in averments with respect to actual value at the time the assessment was made. Even assuming that the written application to the tax commissioners night fairly import an averment that the actual market value of the property did not exceed $69,000, the statement is, in terms, a mere expression of the relator's own judgment or opinion upon the ques

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Supreme Court, May, 1899.

tion unsupported by any proofs. But the facts which he was asked and assumed to give in support of his general complaint may be reasonably regarded as embracing all of the specific grounds for his complaint which he had in mind when he applied for a reduction, and on which he based his claim of overvaluation.

His line of reasoning seems to have been that because his property was assessed in 1895, at $57,000, and in 1896, at $69,000, there must be an overvaluation in the augmented assessment of 1898, because "the market value of the property has not increased since 1895." This assumes that the assessments made in 1895 and 1896 expressed the actual market value in those years. But while it is true that the law requires property to be assessed for purposes of taxation at its actual value, it is a matter of common knowledge that such has not been the practice, the assessment usually falling much below that standard. Indeed, judicial notice of the fact was taken in the case of People ex rel. Equitable Gas L. Co. v. Barker, 144 N. Y. 94, where it was said that (p. 99) "it is well-known that this duty cast upon assessors is seldom performed, and that the taxation of real estate throughout the state is generally upon an assessment which represents but part of its actual value. Assessment at the full value is the exception and not the rule." It was there held that the tax commissioners, in valuing the corporate assets of the relator for personal taxation, were not bound by the value at which the real property had been separately assessed by them for taxation as such, but might estimate it at a larger sum if they then deemed it to be of greater value. See p. 101; see, also, People ex rel. Clearing House v. Barker, 31 App. Div. 315; affirmed, 158 N. Y. 709.

But I do not wish to be understood as attacking the application on mere technical grounds. It may be assumed to be sufficient to call for a consideration of the relator's complaint. When, however, in considering the case upon the merits it is relied upon for the facts which it states, it becomes legitimately the subject of close scrutiny. We have, then, on the one side, this application, such as it is, unaccompanied by any supporting proofs, and which, at best, expresses merely the opinion of the relator that his property has been overvalued, and on the other side, the assessment itself, made under oath by the deputy tax commissioner, and presumably correct, together with his report supporting his action after a re-examination of the matter, with the relator's complaint before him, and the judgment of the tax commissioners themselves upon the question.

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[Vol. 27.

It may be said that, upon the face of the record, nothing more is disclosed than a conflict of opinion upon a question of real estate value. It contains nothing from which the court can intelligently say that these officials were in error in fixing the assessment at the amount determined upon, or that the claim of the relator of overvaluation is any more entitled to recognition and acceptance than the judgment which the respondents have expressed to the contrary. The burden does not rest upon the latter to establish the legality or justice of their assessments. It is for the person claiming to be aggrieved, the one who makes the attack upon their action, to support his complaint by such a presentation of his case as will show by a preponderance of evidence that his claim is well founded. The policy of the court is not to interfere with the determinations of the taxing authorities, unless it is clearly made to appear that their action has been taken in violation of law or contrary to the facts before them. As was said by Andrews, Ch. J., in People ex rel. Equitable Gas Light Co. v. Barker, 144 N. Y. 94, 103: "The commissioners had a right to act upon evidence outside of that furnished by the relator. In making inquiry and collecting the facts, they are not bound by the strict rules which govern ordinary judicial proceedings. If they act in good faith upon their best judgment, upon reasonable grounds, and they do not err in the principle of assessment to the prejudice of the taxpayer, their decision cannot be overruled.”

I do not agree with the counsel for the relator, that under section 898 of the Greater New York charter, it was the duty of the respondents upon the mere presentation of the written petition to cause testimony to be taken with respect to the complaint by a deputy tax commissioner upon notice to the relator. The construction contended for seems to be that the mere filing of the application requires the taking of testimony by the commissioners, or their deputy, with an accompanying obligation to give notice of such proceeding to the taxpayer. I do not think that this is tenable, but rather that the legislature intended to confer upon the deputy tax commissioners power to take testimony, and to make it their duty so to do when offered by the complaining taxpayer. It does not require the commissioners, or their deputy, to seek out the complainant, and to call upon him to submit testimony, but only to take such proofs as he may require to be taken. In other words, the initiative is still with the complaining party, and the burden continues to rest upon him of supporting his application

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by proper proof. The return in this case shows that no evidence in support of his application was submitted by the relator, and it nowhere appears, or is claimed, that any request or suggestion was made by him that any testimony should be taken. Under these circumstances the relator, upon the hearing of the writ, applied to the court to take evidence with respect to the matters of which he complained.

That the court has the power to do so in a proper case is unquestionable. Section 4 of chapter 269 of the Laws of 1880 expressly so provided, and section 253 of chapter 908 of the Laws of 1896, known as the Tax Law, contains such authority. But whether it should be exercised or not in an individual case rests in the sound discretion of the court. The statute last mentioned reads, that "If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which upon which the determination of the court shall be made." The permissive nature of the provision is apparent. The relator cannot demand action under it as a matter of right, although it is freely conceded that where it is plain that a proper disposition of the matter cannot be made by the court without such action, it would be its duty to avail itself of the authority thus conferred.

But the real nature of the writ and its general purpose and character must not be lost sight of. Its primary function is to bring before the court the judicial determination of an inferior tribunal or officer for review, upon the facts on which such determination was based. It is not a proceeding for a new trial in this court. It is true that the statute authorizes further proof to be taken, when upon the hearing on the return, it may appear to the court to be necessary to do so, but this is a mere incidental feature of the proceeding, importing a necessity, developed upon the hearing, for the ascertainment of some further fact or facts not embodied in the return, but deemed by it essential to a proper disposition of the matter. It would be unwise to attempt to define the occasions when such proofs should be taken. Obviously a case arises for so doing, where, upon the hearing, it appears that the assessors have proceeded upon some erroneous theory, the extent of which, in its effect upon the assessment as a whole, further evi

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[Vol. 27.

dence is necessary to disclose. Doubtless, also, such an occasion would present itself where the proofs furnished by the aggrieved taxpayer and the statements in the return relied on by the commissioners in support of their action raise an issue of fact which, in the judgment of the court, should be the subject of inquiry. But, without attempting further illustrations, or, as I have stated, assuming to define all of the contingencies in which the court would deem itself entitled to resort to the power in question, I am quite clear that it should not be exercised where the necessity for sup plementary proofs arises by reason of deficiencies in the record caused by the inexcusable failure of the relator to properly submit his case to the commissioners in the first instance. The consequences of any other rule than this would be grave indeed. Mere formal applications, perfunctorily made to the commissioners solely as a necessary basis for a writ of certiorari, would become frequent, with the expectation that the court would take the proof and determine the amount of the assessment, thus not only adding to already overburdened calendars, but devolving upon the judges duties which it was not intended that they should perform or be concerned with, until after the matter had been properly presented to the authorities constituted by law for the purpose of hearing such complaints and relief had been denied. The law has given to the dissatisfied taxpayer the right to appeal to the commissioners for a revision of his assessment a right which must be exercised before he can come into court with his grievance and its expectation is that he will avail himself of the remedy thus offered in good faith, and will present to that body the facts which he claims support his complant. This is due as well to them as to the court which is in turn asked to review their action. In the present case there is nothing to show that the relator was not as able to furnish the commissioners with the evidence which he wishes to have taken here as he is now. If the return to the writ fails to bring up all that he desires to have before the court, in order to impeach the assessment, it is due entirely to his failure to furnish such proofs when his application below was made.

In this connection it becomes desirable to consider the second ground upon which the assessment in question is attacked, namely, inequality. Until the new charter went into effect, no assessment in this department could be reviewed by certiorari on this ground, the New York City Consolidation Act, chap. 410, Laws of 1882, § 821, not permitting it. The new charter, however (chap. 378,

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