(179 App. Div. 748) PEOPLE ex rel. SOEURBEE, Inc., v. PURDY et al., Commissioners of Taxes and Assessments. (Supreme Court, Appellate Division, First Department. October 26, 1917.) 1. TAXATION ~493(1)—REVIEW OF ASSESSMENTS ILLEGALITY-IRREGULARITY. Under Tax Law (Consol. Laws, c. 60) § 290, as amended by Laws 1916, c. 323, § 76, as to methods of attacking an assessment of taxes, the distinction between a review by certiorari on the ground of illegality and on the ground of an error by overvaluation is substantial. 2. TAXATION 493(8)-REVIEW OF ASSESSMENTS ILLEGALITY IRREGULARITY. The proceeding in certiorari to review an assessment of property, on the ground that it was illegal in including the value of an uncompleted building in the assessed valuation of the real estate, without an allegation that the assessment is an overvaluation, is one for review on the ground of illegality. 3. TAXATION 493(4)—REVIEW OF ASSESSMENTS-ILLEGALITY-IRREGULARITY. Where the tax commissioners had jurisdiction to assess the real estate, so that their assessment was not illegal, and at the most was erroneous by overvaluation of the property, the assessment cannot be attacked on the ground of illegality. 4. TAXATION 493(4)—REVIEW OF ASSESSMENTS-ILLEGALITY—IRREGULARITY. An assessment, which erroneously included the value of a building not yet completed, could not be attacked on the ground of illegality, although the commissioners are required to set down the assessed value of the land and of the building separately, since, in view of Tax Law, § 21a, as added by Laws 1911, c. 117, only the total assessment is reviewable, so that the assessment was not illegal, but was a mere overvaluation. Page and Smith, JJ., dissenting. Appeal from Special Term, New York County. Certiorari by the People, on the relation of Soeurbee, Incorporated, against Lawson Purdy and others, as Commissioners of Taxes and Assessments of the City of New York. From an order granting a motion to quash the writ of certiorari, relator appeals. Affirmed. Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ. Lawrence E. Brown, of New York City, for appellant. SCOTT, J. The relator seeks to review by certiorari the assessment of its real estate in the city of New York for purposes of taxation in the year 1917. The objection to the assessment on the part of the relator is that there is included in the assessment the value of a building upon the real estate which had been commenced since the preceding 1st day of October and was not at the time of the assessment ready for occupancy. As the motion to quash necessarily admits the relevant facts alleged in the petition, we must assume for the purposes of this appeal that these facts are true. The objection taken to the petition is that it seeks to review the assessment for illegality, whereas, conceding that the erroneous item of value was included in the assessment to be reviewed, that error resulted only in producing an "overvaluation," and did not render the assessment "illegal." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] Section 290 of the Tax Law, as amended by Laws 1916, c. 323, as well as section 906 of the Greater New York Charter (Laws 1901, c. 466), as amended by chapter 455, Laws 1911, provides that any person claiming to be aggrieved by any assessment may seek relief through a writ of certiorari upon either one of three grounds: First, for illegality, in which case the grounds of the alleged illegality must be stated; second, for overvaluation, in which case the extent of the overvaluation must be stated; third, for inequality, in which case facts showing the inequality must be stated. The judgment to be awarded if the petitioner establishes his claim is, in case the assessment is found to be "illegal," that it shall be stricken from the roll, in which case the property would remain unassessed for any sum, and, in case it is "erroneous" for overvaluation or inequality, that a reassessment be made or the roll be corrected, in which case the property will remain assessed at the proper valuation. Section 293, Tax Law, as amended by Laws 1916, c. 323. The distinction, therefore, between a review by certiorari on the ground of "illegality” and a review on the ground of an error by reason of "overvaluation" is very substantial, both as to the facts to be alleged in the petition and as to the judgment to be entered if the facts are established. This distinction has repeatedly been recognized by judicial decisions. In Matter of New York, Ontario & Western R. R. Co., 155 App. Div. 866, 140 N. Y. Supp. 678, the Appellate Division in the Third Department pointed it out with great clearness as follows: "The distinction between an erroneous and an illegal assessment is stated in National Bank of Chemung v. City of Elmira, 53 N. Y. 49-58, as follows: "The former is when the officers have power to act but err in the exercise of the power; the latter where they have no power to act at all.' See, also, People ex rel. Hermance v., Supervisors, 10 Hun, 545. Concededly the assessors had jurisdiction of both the relator and of its real property situated within the limits of Centreville Station: Adopting an improper method of determining the value of relator's property, assessing it at a higher proportionate valuation than other property on the roll, or omitting to assess personal property of which the assessors may have had knowledge, would render the assessment unequal and erroneous, but would not render the assessment illegal." * [2] In the case at bar the application is distinctly based upon an allegation that the assessment complained of is "illegal"; said illegality consisting, as is alleged, in the inclusion of the value of the uncompleted building in the assessed valuation of the real estate. There is no statement in the petition, such as is essential in an alleged case of overvaluation, of the extent of such overvaluation. The proceeding is clearly one for review on the ground of "illegality," and not on the ground of "overvaluation." [3] That the tax commissioners had jurisdiction to assess the real estate in question cannot be doubted. Hence it cannot be said to be "illegal." At the most the assessment was erroneous because, in assessing the value of the real estate, the tax commissioners included an element of value which should have been excluded, to wit, the unfinished building. Section 889a of the Greater New York Charter, added thereto by chapter 324, Laws of 1913. This was error, not illegality, in the sense in which the word "illegal" is used in the Tax Law. [4] The relator urges that the inclusion in the assessment of the value of the building can be assailed upon a petition for illegality, because the commissioners are now required to set down the assessed value of each parcel of real estate in two columns, the first of which shall contain the sum for which, in the opinion of the commissioners, the parcel "under ordinary circumstances would sell if wholly unimproved," and the second of which shall contain "the sum for which said parcel would sell with the improvements, if any." ." Notwithstanding this provision, it is settled that what is reviewable by certiorari is the total assessment only. Tax Law, § 21A; People ex rel. Strong v. Hart, 216 N. Y. 513, 111 N. E. 56. What we have, then, is the case of an assessment of a parcel of real estate which the tax commissioners had jurisdiction to assess, but as to which they unlawfully included an element of value, to wit, an uncompleted building which, while it constituted a part of the real estate, was expressly exempted from assessment by statute. The result, in my opinion, was that the assessment was erroneous for overvaluation, but that it was not "illegal" in the sense in which that word is used in the statute. It cannot, therefore, be attacked for "illegality." If it be said that this is a technical construction of the Tax Law, the answer is that the whole proceeding for a review of assessments by certiorari is statutory and technical, and that in order to avail of the statute persons aggrieved must conform to its requirements in matters of procedure. It may be that in certain cases an error, such as the petitioner complains of here, has been corrected upon a petition alleging only "illegality"; but in none of these cases was the question of the sufficiency of the petition raised, as here, by a motion to quash, nor is the question we have discussed either argued or considered. So far as we can ascertain, it is now presented for the first time in an appellate court. The order appealed from is affirmed, with $10 costs and disburse-ments. Order filed. CLARKE, P. J., and DOWLING, J., concur. PAGE, J. (dissenting). In my opinion the facts, admitted to be true, in so far as this appeal is concerned, show an illegal assessment, and not an overvaluation of the relator's property. The Greater New York Charter, in sections 889, 889a, 892, and following sections, furnishes a complete system for the assessment of all real property in the city, the entry of the assessments, the inspection and correction thereof, the presentation to and confirmation by the board of aldermen of such assessments, and the final fixing of a tax. Laws 1901, c. 466, as amended by Laws 1911, c. 455, and Laws 1913, c. 324. So far as material to this appeal they are as follows: It is the duty of the deputy tax commissioners to assess all the taxable property, in the several districts that may be assigned to them, and to furnish to the board of taxes and assessments, under oath, a detailed statement of all such property, containing, among other details, the sum for which, in their judgment, each separately assessed parcel of real estate under ordinary circumstances would sell if it were wholly unimproved, and separately state the sum which under ordinary circumstances the same parcel of real estate would sell with the improvements, if any, thereon. Section 889a provides: "A building in course of construction, commenced since the preceding first day of October and not ready for occupancy, shall not be assessed." Section 892 provides for the keeping, in the several offices established by the said board, books to be called the "Annual Record of the Assessed Valuation of Real and Personal Estate of the Borough of ——," in which shall be set down the assessed valuation of such property within the limits of the several boroughs. In such books. the assessed value of real estate shall be set down in two columns. In the first column shall be given, opposite each separately assessed parcel of real estate, the sum for which such parcel under ordinary circumstances would sell if wholly unimproved; and in the second column shall be set down the sum for which the said parcel, under ordinary circumstances, would sell, with the improvements, if any, thereon. Provision is then made for the books to be open for public inspection, examination, and correction on certain days therein specified, of which notice is to be given by advertisement. Succeeding sections provide that any person feeling aggrieved by the assessed value of real estate may apply in writing during the time that the books shall remain open, and for the examination into the complaint by the board, and if in their judgment it is erroneous the same is to be corrected. In the instant case the deputy assessors assessed the relator's real estate unimproved $120,000, and with improvements thereon $635,000, and it was thus entered upon the "Annual Record of the Assessed Valuation of Real and Personal Estate of the Borough of Manhattan." During the period provided therefor the relator duly made his claim that the assessment was illegal, on the ground that the assessment was placed upon improvements which consisted of a building, in course of construction, commenced since the preceding 1st day of October, and not ready for occupancy on the 1st day of October, 1916, and therefore the assessment thereof was prohibited by section 889a of the Greater New York Charter. The majority opinion limits the meaning of the word "illegal" in section 906 of the Greater New York Charter (which authorizes certiorari proceedings) to apply only to an act void for want of jurisdiction, or, in other words, to an act not authorized by law, and holds that it cannot apply to an act done in contravention of an express statutory prohibition, but that such an act is "erroneous." It seems to me that this is not a technical construction of the statute, but one that does violence to plain meaning of the English language. An act beyond the jurisdiction of the board is an illegal act; but it does not follow that it cannot do an illegal act within its jurisdiction. An act prohibited by law is an illegal act. Thus, when the building upon this parcel of land was assessed, the assessor did an act that he was expressly prohibited from doing. In my opinion, the act of the assessor cannot be deemed an "overvaluation," for that presupposes a proper valuation, which has been exceeded. It may be the fact, and probably is, that the building that improves this parcel of land is of the value at which it is assessed. The law says that it has no value for taxation purposes; that such a building is not an improvement that can be taken into consideration. For the purposes of taxation it does not exist. In Matter of N. Y. Catholic Protectory, 77 N. Y. 342, 344, the court said: "The imposition of the tax in question was manifestly illegal, the property on which it was assessed being by law exempt from taxation." The Appellate Division of the Second Department has very recently (July 31, 1917) passed on the identical question here involved and said: "The return to the writ shows that the unimproved value of the real estate was fixed at $12,000, and its value with improvements was $45,000. The return also shows clearly that the assessment of the lot with improvements related to the building. If the building was in course of construction, it was exempt, and the assessment was illegal. There was no occasion for showing that there was an overvaluation." People ex rel. Gleason v. Purdy et al., 166 N. Y. Supp. 480, 482. I would have been content to rest my dissent upon this authority had it not been for the suggestion in the majority opinion that the question was not directly raised in that case by a motion to quash the proceeding. The only difference between these cases is that here the facts are admitted; in that case they are found on undisputed evidence. That the identical question here considered was there determined appears from the above quotation from the opinion. SMITH, J., concurs. (179 App. Div. 754) PEOPLE ex rel. JULIUS TISHMAN & SONS, Inc., v. PURDY et al., Commissioners of Taxes and Assessments. (Supreme Court, Appellate Division, First Department. October 26, 1917.) Appeal from Special Term, New York County. Certiorari by the People, on the relation of Julius Tishman & Sons, Incorporated, against Lawson Purdy and others, as Commissioners of Taxes and Assessments of the City of New York. From an order denying a motion to quash the writ of certiorari, defendants appeal. Reversed, and motion granted. Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ. William H. King, of New York City, for appellants. John M. Stoddard, of New York City, for respondent. SCOTT, J. For the reasons stated in People ex rel. Soeurbee, Incorporated, v. Lawson Purdy and others, 167 N. Y. Supp. 91, decided herewith, the order appealed from is reversed, with $10 costs and disbursements, and the motion granted, with costs. Order filed. CLARKE, P. J., and DOWLING, J., concur. SMITH and PAGE, JJ., dis sent. |