People ex rel. President of Delaware & Hudson Canal Co. v. Parker

Majority

p. 448

The People of the State of New York ex rel. The President, Managers and Company of the Delaware and Hudson Canal Company, Resp’t, v. Benjamin B. Parker et al., Assessors, etc., and Henry A. Ennis, Town Clerk, App’lts.

(Supreme Court, General Term, Third Department,

Filed July, 1887.)

Headnote

1. Certiorari—Remedy by—When applicable.

It is a general rule that relief by certiorari is admissible only when there is no other available and adequate remedy. The exception to this rule ex-sts only when the proceeding by certiorari is given by virtue of a special statute

2. Same—Implied admission by.

The issuance of the writ of certiorari to officers to review and correct their actions, implies the right to act legally as officers within the scope of their authority,

8. Same—Laws 1880, chap. 269—Scope op provisions.

It is not intended by Laws 1880, chapter 269, to extend a remedy by certiorari so as to include an inquiry into the title of the assessors to their office.

4. Same—Laws 1880, chap. 269, § 1—Irregularities—What remedied by.

Any irregularity to be of avail to the testator on a proceeding under Laws 1880, chapter 269, must work an injury to him.

Appeal taken by assessors and a town clerk from an order granting a writ of certiorari to review an assessment under Laws 1880, chapter 289, and from an order appointing a referee and overruling objections to the making of said order, and from a final order in the proceedings and an order refusing to modify it.

The questions whether the assessment against the relator was erroneous by reason of over-valuation, or made at a valuation higher than that of other property included in the roll, were not considered, but the spebial term entered into an investigation of the rights of the assessors to their office, and holding that the roll was not verified by anyone having legal title to the office, adjudged" the relator’s assessment for that reason void.

John F. Anderson, for app'lts; P. & C. F. Cantine, for resp’t.

It will be observed that the special term made the proceeding, one in the nature of a quo warranta to the extent of an inquiry into the assessors’ title to the office of assessor, respectively; although each held a formal record title thereto duly certified and entered in the records of the

p. 449

town kept by the town clerk, and had qualified according to law and was also in the actual exercise of the duties of the office. The decision impeached the record which conferred upon these persons, in due form of law, the right to the office and adjudged Parker and Courtright who made up, signed and verified the assessment-roll, to be simply naked usurpers; and this, although they claimed the office by virtue of former record title, and were, by tacit consent of the town, in possession of the office, exercising its duties.

Thus the decision was put on the ground that these persons were mere intruders, having no better right to make up the assessment-roll than had any other two residents of the town who should, on their own violition simply, assume to go through with the process of levying and collecting taxes from its property owners. Concede this and the case was not one for relief by certiorari, which goes to inferior courts or tribunals and to judicial or quasi judicial officers to review and correct erroneous decisions or proceedings had or taken by them in their capacity as officers, not to annul the action of naked intruders, on the ground that they were simply usurpers. In this latter case a party whose property should be taken from him through the illegal and wrongful action of such intruders would have a perfect remedy by suit in trespass or trover or replevin; and it is a general rule, that relief by certiorari is admissible only when there is no other available and adequate remedy. The exception to this rule exists only when the proceeding by certiorari is given by virtue of a special statute, and it may too be observed that the very issuance of a writ to officers to review and correct their actions, implies this right to act legally as officers within the scope of their authority.

It is not, as we think, intended by the act of 1880, under which this proceeding is taken, to extend a remedy by certiorari so as to embrace the ground of error charged and found against the defendants, on which the decision here is made to depend. That act contemplates the issuing of the writ to officers (not to persons other than officers; to mere usurpers of office), with right to make a new or reassessment, and goes to correct illegality and errors in an assessment by assessors. The errors enumerated in the act of 1880 are over-valuation and inequality in the assessment. Such errors (as the case is now presented), are not here matters for consideration. The “illegality” spoken of in the act, as we conclude, embrace such illegal action as the assessors may commit as officers, as assessors having the general right and authority to assess persons and property

p. 450

for the purpose of taxation; as, for instance, an assessment for property not owned by the person assessed for it, or which is exempt from taxation and the like. Our views of this case as above expressed are, as we think, fully sustained by the decision m the People ex rel. Corwin v. Walter and others ( 68 N. Y., 403 ).

But it is urged, further, that Bogert was prevented by Parker from taken any in fixing the valuation of property, and that on the review day the relator appeared and applied to have the assessed value of its property appearing-on the roll reduced, which application was denied; and that Bogert did not act thereon for the reason that Parker excluded and prevented him from acting, and such action by Parker is also insisted on as an “illegality,” of which the-relator may in this proceeding complain. Admit this, although we do not so decide, and how then does it appear that the relator was thereby injured. Injury must be-shown or the alleged illegality will be unavailing. See section 1 of act of 1880. Two assessors may make the assessment, and it does not appear that the assessment against-the relator would have been any less; or, indeed, in any way affected had Bogert acted with the other two throughout.

The decision and order appealed from must be reversed, and the proceeding sent back to the special term for other and final disposition. Fifty dollars costs of appeal and disbursements to be allowed to the appellants in the final order to be made herein.

Learned, P. J., and Landon, J., concur.