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People ex rel. Hall v. Ouderkirk

120 A.D. 650 Court Third Department, Decision date 1907-06-25 English

Delivered by Qoohrmte, J.:

Contents

Majority

p. 650
The People of the State of New York ex rel. Congress Hall, a Corporation, Respondent, v. Isaac Y. Ouderkirk and Others, Assessors of the Town of Saratoga Springs, Appellants.
Third Department,
June 25, 1907.

Headnote

Tax—certiorari to review assessment — defects in complaint on grievance day—petition—allegations on information and belief—proof of value of lands — amendment to conform to proof—referee may make findings —undervaluation of lands condemned.
Town assessors cannot for the first time upon appeal object tó the sufficiency of a complaint filed with them on grievance day.
A petition on certiorari to review an assessment on the grounds of inequality is not defective because the allegations as to the value of the relator’s property are made on information and belief and without setting forth the sources and grounds thereof. .The petition .and return on certiorari to review an assessment, unlike.those in ordinary certiorari proceedings, are similar to pleadings in
p. 651
an action, and allegations may be made on information and belief •without setting forth the grounds thereof.
Although in such proceeding the petition alleges that the full value of the relator’s property'is a certain sum, he may prove on the trial that it was worth .less than that amount. Moreover, the court may allow an amendment to the petition to conform to the proof, as in the case of a complaint, and if such motion is improperly denied, the discrepancy between the petition and proof may be disregarded on appeal or the petition amended to conform to the facts.
On a reference in certiorari to review an assessment the. referee may report findings of fact and conclusions of law, although the order of reference does not specifically authorize him to do so, and in any event the court at Special Term by adopting such findings and conclusions makes them the determination of the court.
The prevalent custom of assessing real estate at less than its full valúe condemned.
Appeal by the defendants, Isaac Y. Ouderkirk and others, assessors of the town of Saratoga Springs, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Saratoga on the 30th day of January, 1907, upon an order entered in said cleric’s office on the 30tli day of January, 1907, confirming the report of a referee appointed in a proceeding to review the assessment of the relator’s property and directing the reduction of the tax imposed by the assessors and the refunding of the excess.
The defendants, as assessors of the town of Saratoga Springs, in the year 1905 assessed at the sum of $112,500 certain real estate of ■the relator, consisting of a hotel in the village of Saratoga Springs.
The relator, deeming itself aggrieved by such assessment, filed with the assessors on “ grievance day ” a statement of such grievance as required by section 36 of the Tax-Law (Laws of 1896, chap. 908). The assessors acted on such statement and reduced the assessment to $100,000.
The relator, still deeming itself aggrieved, instituted this proceeding by writ of certiorari under the provisions of said law.
The defendants having made return to such writ the proceeding was referred. Testimony was taken before the referee, who reported that the assessment of the relator should be still further reduced to the sum of $59,000. Such report having been confirmed by the court and judgment having been entered thereon the defendants appeal.
p. 652
John L. Henning and John A. T. Schwarte, for tile appellants.
Edgar T. Brackett and Hiram C. Todd, for the respondent.

The reason .for the reduction in the relator’s assessment was inequality in that it was “ made at a. higher proportionate valuation than the assessment of other property on the same roll by the same officers.”' (Tax Law, § 250.).- The petition alleges such inequality as the basis of this proceeding and specifies numerous instances in which such inequality exists and the extent, thereof. -

The appellants urge that the complaint' filed with them on “grievance day” under section 36 of the Tax Law and which constitutes the basis’óf this proceeding was insufficient. They acted thereon and partly complied therewith by reducing the assessment. The purpose of this statement was to apprise them of the nature of tile relator’s grievance. If- the statement were insufficient they should have objected thereto when it was filed and when it might have been corrected. It is- now too late to raise such objection. (Matter of Corwin, 135 N. Y. 251 )

It is also insisted that said petition is defective because it is on' information and belief and does not set forth the sources and grounds thereof. I think the petition complies "literally with section 250 of the Tax Law. Allegations as to the value of real property azre necessarily to a large extent matters of opinion and belief. Were such allegations not in form stated to be on information and belief they would nevertheless be such- in fact although not’ thus expressly* stated. There is nothing in- the statute indicating that a. petition in a proceeding of this nature may not be- on information and belief or indicating that when one or more such allegations therein are thus stated the. sources of the information and the grounds of the belief must also be stated. The. purpose bf the petition -is to set in motion the machinery of the Tax- Law to- review the proceedings of the assessors. The questions involved are not determined on the return as in ordinary certiorari proceedings, but it is provided by the statute that evidence may be taken eifher by the court or by a referee,appointed for that purpose and a determination is made on such testimony and not necessarily on the petition, writ and return. (Tax Law, § 253; People ex rel. Thomson v. Feitner, 168 N. Y. 441 , 456; People

p. 653
ex rel. Ulster & Delaware Railroad Company v. Smith, 24 Hun, 66 ; People ex rel. Dexter v. Palmer, 86 id. 513.) The petition in a proceeding under the Tax Law has .no probative force. It has been held that such petition partakes of the nature of a pleading in an ordinary action, and that it is only necessary that it should contain conclusions of fact and not the evidence in support of such facts. (Matter of Corwin, 135 N. Y. 245 ; People ex rel. Commercial Mutual Insurance Company v. Commissioners, 144 id. 483; Matter of Nisbet, 3 App. Div. 171 .) Ho question was raised in the court below as to the sufficiency of the verification of the ' petition, and the petition itself sufficiently complied with the statute.

The relator in its petition alleged that the full value-of the property was $150,000. It is now claimed that it was error to allow proof that it was in fact worth less than that amount and that a finding by the referee and court that it was worth $125,000 is erroneous in view of such allegation in the petition. I suppose that even the owner of property may be mistaken as to its value. The allegation of value in the petition while having the force of an admission as against the petitioner is not conclusive. The appellants have not been misled or prejudiced thereby. What has been heretofore said as to the analogy between the petition and'a pleading in an action applies here also. There can be no1 question as to the power of the court to amend the petition if necessary as a complaint might be amended to conform to the proof. ■ A motion to that effect was made at Special Term and denied. But if improperly denied the discrepancy between the petition'and the proof should either be disregarded on appeal or the petition amended to conform to the facts. (Chatfield v. Simonson, 92 N. Y. 217 .) It has been held that the return in this class of cases does not conclude the assessors. (People ex rel. Thomson v. Feitner, supra; People ex rel. Ulster & Delaware Railroad Company v. Smith, supra; People ex rel. Dexter v. Palmer, supra) If the return does not conclude the assessors it follows by a parity of reasoning that the petition does not conclude the petitioner.

It is further urged that the order of reference did not authorize the referee to report findings of fact and conclusions of law. It is true that the order did not in terms go to that extent. That, however, is the requirement of the statute. And if we assume that

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the referee in this particular exceeded his; authority the court at Special Term expressly adopted, his findings of fact and conclusions of law which thereupon became the determination of the court.'

Alleged errors by the referee in ruling on the admissibility of tes-" timony are also urged. None of them are of sufficient importance to call for discussion. The strict'rules of evidence applicable to trials do not prevail - in this kind of proceeding.- (People ex rel. Warren v. Carter, 47 Hun, 446 ; People ex rel. Wallkill Valley Railroad Co. v. Keator, 36 id. 592, 596 .)

The merits of -the determination are not in any way questioned on this appeal. AH'of the objections are directed against the practice and form of procedure adopted. After a careful examination we are satisfied that the determination of the court below-was right and that no substantial errors were committed in reaching- such determination.

This is an opportune time to comment on the custom, much too prevalent among assessors of assessing real estate at. less than its full value in ' direct violation of the statute. Hot only do assessors in following such custom violate their official duties, but consciously or unconsciously they.swear to an untruth when in the verification of the assessment foil, which is required, they make.oath that they 11 have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full, value thereof.” (Tax Law, § 37.[1] ) This case is a startling commentary on either the incompetency or willful official dereliction of the assessors. Having first verified their' assessment roll wherein they made oath that they had estimated the value of the real estate at the sums which a majority of. them decided to be the full value thereof, they' proceeded to establish the falsity of such oath by proving the .valuations to-be'.far in excess of the assessments. ■ They called different witnesses before the referee, who testified that not merely in exceptional instances' but that'as a general rule the actual value of the property inquired about was nearly or quite double the amount , for which it was assessed. The assessors seem to have considered their violation of law of no -consequence provided only in making the various assessments- they violated it impartially. The referee gpeeified in his report numerous parcels of real estate in reference to

* Amd. by Laws of 1899, chap; 712,— [Rep.

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which the total assessed valuation was less than one-half the full value and reported “ that said parcels of real estate are typical of all the property in the town of Saratoga and fairly represent the ratio of’actual assessments to full values in said town for the year 1905.” If the assessors were awake to the plain requirements of their official duties and assessed all real estate as they aré- commanded to do at its full value a litigation like this could scarcely arise. The criticisms here made do not rest alone on these assessors. They have merely followed a custom prevalent in many communities. But it is a custom not only wholly repugnant to the plain mandates of the statute, but also radically at war with the official oaths of the assessors and also with their oaths to the assessment rolls.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

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