People ex rel. Nostrand v. Wilson — 27 N.Y. St. Rep. 279

Majority

p. 279

The People ex rel. Ellen Nostrand, Resp’t, v. Thomas A. Wilson et al., App’lts.

(City Court of Brooklyn, General Term,

Filed November 25, 1889.)

Headnote

.Municipal corporations—Assessments—Mandamus.

The assessors, by mistake, included in the assessment roll for a local imimprovement lands of relator situate outside the assessment district as fixed. Held, that this was a clerical error; that it was the duty of the assessors, under § 10, title X, of the charter of Brooklyn, to correct the list, and that a mandamus would lie to compel them to do so.

Appeal from order granting writ of mandamus.

Sidney V. Lowell, for resp’t; Almet F. Jenks, for app’lts.

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 re-paving of Bushwick avenue from Myrtle to De 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 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 § 10 of title X of the revised charter. Chapter 583 of the Laws of 1888. The clause at the end of the 5th subd. of § 10, “ until it shall have been certified to by the comptroller and the collector of taxes and assessments,” 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 § 21 of title IX, 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.

Osborne, J., concurs.