People ex rel. Soeurbee, Inc. v. Purdy

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. [749] 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 first 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.” Section 290 et seq. of the Tax Law (as amd. by Laws of 1916, chap. 323), as well as section 906 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1911, chap. 455), provide 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. (Tax Law, § 293, as amd. by Laws of 1916, chap. 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. Co. (155 App. Div. 866) the Appellate Division in the Third Department pointed it out with great clearness as follows: “ The dis [750] tinction 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 Centerville 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.” 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.” 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. (Greater New York Charter, § 889a, added thereto by Laws of 1913, chap. 324.) This was error, not illegality, in .the sense in which the word “ illegal ” is used in the Tax Law. 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 [751] ordinary circumstances, would sell if wholly unimproved,” and the second of which shall contain “ the sum for which the said parcel, under ordinary circumstances, would sell, with the improvements, if any, thereon.” (See Greater New York Charter, §§ 889, 892, as amd.by Laws of 1911, chap,455.) Notwithstanding this provision.it is settled that what is reviewable by certiorari is the total assessment only. (Tax Law, § 21a, as added by Laws of 1911, chap. 117; repealed by Laws of 1916, chap. 323; Tax Law, § 21, added by Laws of 1914, chap. 277, as amd. by Laws of 1916, chap. 323; People ex rel. Strong v. Hart, 216 N. Y. 513.) 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 those 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 ten dollars costs and disbursements. Clarke, P. J., and Dowling, J., concurred; Smith and Page, JJ., dissented.