In re Long Beach Land Co. — 106 A.D. 253

Majority

p. 253

In the Matter of the Application of The Long Beach Land Company, Respondent, for a Review by Writ of Certiorari of an Assessment upon Its Property in the Town of Hempstead for Taxes of 1904. William H. S. Smith and Others, Assessors of the Town of Hempstead, Appellants.

Headnote

Tax assessment against the owner of lands, subject to leases under which the tenants are in possession —leases presumed, to be valid — consent of assessors that if so determined by the court the assessment be reduced to a sum specified, construed.

Where land leased in 1880 has, since that time, been in the undisputed possession of the tenant, the assessors, when assessing the owner of such land, should treat such leases as valid.

Where, in a certiorari proceeding to review an assessment of §200,000 levied upon the owner, the assessors, in their return, state that if the court determine the leases to be valid, “ they will not put the petitioner to the trouble of offering proof of value, but will consent to the entry of an order fixing the value at §50,000,” the court may act upon such consent and need not take testimony as to the value of the land subject to the leases.

Such consent is equivalent to a sworn declaration by the assessors that in their judgment the value of the lands, assuming them to be subject to the leases, was only §50,000.

Appeal by William H. S. Smith and others, the assessors of the town of Hempstead, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 10th day of February, 1905, reducing the assessment of $200,000 upon the lands of the Long Beach Land Company to $50,000.

p. 254

George Wallace, for the appellants.

Fred Ingraham, for the respondent.

The lands of the respondent, which the assessors valued' at $200,000 for purposes of taxation, are subject . to certain leases originally made by the town of Hempstead to Thomas R. Sharp, for a term of fifty years from March 6, 1880. The assessors in making their valuation treated these leases as null and void. They set out in their return, however, that, should it be decided by the court that the Long Beach Land Company was not entitled to possession and use of the premises so assessed, by reason of the existence of.these leases, they would regard the sum of $200,000 as-too high a valuation to be put on the lands; and they further say, “ if so decided by the court, they will not put the petitioner to the trouble of offering proof of value, but will consent to the entry of an order fixing the value at $50,000,- the sum specified in the protest ” of the Long Beach Land Company.

As was pointed out by the learned judge who heard the case at Special Term, there is no dispute that the tenant under these leases is in possession,' and that possession thereunder has been maintained, without question, since 1880. We agree with him that it was the duty of the officers to recognize this existing situation and to make their assessment with reference to it. The court could not determine the validity of the leases—- a question solely of equitable cognizance in this special statutory proceeding — or in the absence of the town of Hempstead and the tenant as parties.

It seems quite clear, therefore, that the court below was right in holding that the assessors should have treated the leases as in force. If this is so, it is manifest that the valuation of $200,000 was excessive. The assessors themselves_ concede as much, and avowed in their return their readiness to assent to a reduction to $50,000-unless the leases were condemned. The counsel who- represents them on this appeal, however, insists that this consent is not binding, and the mam question in the case is whether the Special Term judge acting thereon was right in reducing the valuation to $50,000 or whether he should have taken testimony as to the value of the land subject to the leases.

p. 255

We do not think that he erred in adopting $50,000 as the true value. We think the statement which has .been quoted from the return of the assessors is equivalent to a sworn declaration by those officers that in their judgment the value of the lands to be taxed, assuming them to be subject to the leases, was only $50,000. In view of such a declaration from the officers charged with the duty of fairly and honestly fixing the value for purposes of assessment, there seems to have been no necessity for further judicial inquiry at the instance of the assessors.

Eor these reasons we think the order appealed from should be affirmed.

Woodward, Rich and Miller, JJ., concurred.

Final order affirmed, with ten dollars costs and disbursements.