People ex rel. Nostrand v. Wilson

Clement, C. J. The relator owns land on the corner of Myrtle avenue and Ditmars street, in this city, and the board of assessors, by mistake, included such property in the assessment district for the repaving of Bush wick avenue from Myrtle toDe Kalb avenues. At special term said relator applied for a peremptory writ of mandamus against the assessors, to strike her property from the list, and against the collector of taxes and assessments, to make the proper entry, which motion was. granted; and from the order entered thereon, this appeal is taken. No affidavits denying the facts were filed by 628 the appellants on the motion, and the only point raised on the appeal is that mandamus is not the proper remedy. We think that the error of the assessors was clerical, and that they had the power, and that it was their duty, to make the correction of the list in accordance with the facts, pursuant to section 10, tit. 10, of the Revised Charter, (chapter 583 of the Laws of 1888.) The clause at the end of the fifth subdivision of section 10, “ until it shall have been certified to by the comptroller, and the collector of taxes and assessment, ” does not mean that the comptroller and collector shall certify to the correction before it is made, but that it shall be certified to them after the assessors rectify the error. See section 21, tit. 4, same charter. Independent of the provisions of the charter, the remedy by mandamus has been used to strike non-residents from the roll, (People v. Assessors, 44 Barb. 148; Barhyte v. Shepherd, 35 N. Y. 238, 255,) and also to strike off non-taxable property, (People v. Olmsted, 45 Barb. 644.) The assessors admit that they made a mistake, and now claim that they should not correct the same, except by an action against the city, to which it is conceded there would be no defense. There is no merit in this appeal, and.the order granting a mandamus should be affirmed, with costs and disbursements.