People ex rel. Scobell v. Kilborn — 35 Misc. 599

Majority

p. 599

The People ex rel. Jalbert Scobell, Relator, v. Johh Kilborn et al., Assessors of the Village of Cape Vincent, Respondents.

(Supreme Court, Onondaga Special Term,

July, 1901.)

Headnote

Tax — Waiver by assessors of a failure to file, with them, a verified statement of the respect in which an assessment complained of was excessive — L. 1896, ch. 908, § 36.

A failure, upon the part of a complainant against an assessment as excessive, to file with the assessors, on review day, a statement under

p. 600

oath specifying the respect in which the assessment complained of is incorrect, as required by the Tax Law of 1896, is waived by the assessors, and cannot prejudice the right of the complainant to a ' subsequent review by certiorari, where the relator appeared before them on the review day and insisted that his valuation should be reduced, and they, without requiring of him the statutory statement, or objecting to its absence, or taking his evidence orally, reduced his assessment to some extent.

The relator has sued out a writ of certiorari by which to review an assessment made by the defendants of certain property of his situate in the village of Cape Vincent, on the ground that. the valuation placed thereon is excessively high. Upon the return day of the writ, the defendants appeared and made- a preliminary motion to have the writ quashed, failing in which, they desire to have their return to such writ filed and an order of ¡reference made under the statute.

J. W. Cornaire, for relator.

Watson M. Rogers, for respondents.

Upon the proper day and at the proper time, the relator appeared before the assessors and verbally objected to the valuation placed upon his property in question in Cape Vincent, stating, in substance, that the property was valued at more than it cost or was worth, and that the valuatiion should be reduced. He did not file a statement, under oath, specifying the respect in which the assessment, complained of was incorrect, etc., as provided by the statute. He did, however, offer to be sworn and examined upon the subject. So far as appears, the assessors did not object to this method of procedure. They did not ask for any verified statement, and they did not examine the plaintiff, and subsequently they did act upon his protest and objection, to the extent of reducing the valuation complained of, by the sum of' $500.

The objection urged to relator’s proceeding, and upon which it is asked to have this writ quashed, is that he did not file such written statement. I think, however, that the conduct of the assessors, upon the occasion- in question, in receiving his parol statement and not taking his evidence, and in'subsequently acting

p. 601

upon such proceedings, without any objection, and reducing his assessment, was a waiver of his failure to file a written statement, which they had full power and jurisdiction to-make, and that, therefore, the objection in question is not well taken. People ex rel. West Shore R. R. Co. v. Johnson, 29 App. Div. 75 ; People ex rel. Eckerson v. Christie, 115 N. Y. 158 .

The motion, therefore, to quash the writ is denied, with ten dollars costs, and an order of reference will be made under the statute. The parties may agree upon and submit the name of a referee, if possible; otherwise, the court will appoint one.

Ordered accordingly.

Cases cited

People ex rel. Eckerson v. Christie 115 N. Y. 158 N.Y. 1889-06-11 p. 601