People ex rel. Sodus Bay & Southern Railroad v. Cheetham

Majority

p. 580

The People ex rel. The Sodus Bay and Southern Railroad Co. and The Northern Central Railway Co., App’lts, v. William T. Cheetham et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed June, 1887 )

Headnote

1. Taxes and assessments—Certiorari—Laws 1880, chap. 269—Failure TO SUPPLY WRITTEN STATEMENT REQUIRED BY IB. S., 414, § 2, DOES NOT TAKE AWAY RIGHT TO REVIEW PROCEEDINGS OF ASSESSORS.

Upon an appeal from an order granting a writ of eertiora/ri, the application for which was made under the provisions of Laws 1880, chap. 269, to review an assessessment of the property of the relator; Held, that the failure of the relators to furnish a wri.ten statement, as required by 1 It. S, 414, § 2, did not deprive them of the right to review the determination of the assessors. That the consequence of such failure was prescribed by section 4 of that act and that the courts could not add penalties to those prescribed by the legislature

2. Same—Where statement could contain no information on points TO WHICH objections were taken.

Held, that in case the foregoing ruling were erroneous, there was no obvious reason why the relator should be deprived of the right to review the action of the assessors in respect to alleged errors upon points concerning which, the statement, if made, could have furnished no information to the assessors

3. Same—Improper joinder of parties applicant no ground for quashing writ—Remedy is by motion to strike out.

Held, that if upon the application for the writ there were an improper joinder of parties applicant the remedy for the defect was not by motion to quash the writ, but by motion to strike out the party improperly joined.

4. Same—Verification of petition by one of relators sufficient, on MOTION TO QUASH WRIT.

Held, that a verification of the petition by one of the relators was sufficient, on a motion to quash the writ.

5 Same—Form of verification not prescribed by Laws 1880, ciiap 269.

Upon objection to the verification taken, on the ground that it did not state that either of the relators had ‘' not an officer or director thereof then actually within the county,” but staled only that no such officer, etc.. “ resides ” in said county. Held, that the verification was sufficient within Laws 1880, chap. 269, which does not prescribe the form of the verification, but merely requires that the petition be duly verified.

6 Same—Petition—What allegations sufficient within Laws 1880, chap 269, § 1.

Held, that the petition alleging that the parties “ claim ”_to be aggrieved, and containing averment of the errors alleged, was sufficient within Laws 1880, chap. 269, § 1.

7 Same—Laws 1880, chap. 269, § 4^-Traverse of return unnecessary.

Held, that the rule applying to common law certiorari proceedings, that a return not traversed is to be taken as conclusive and acted on as true, had no application to such proceedings taken under this statute, which seems to contemplate that notwithstanding the return takes issue with material allegations in the petition or avers new matter, the court, at the hearing, may order proofs to be taken, and that the testimony so taken and reported shall be considered by the court in making its determination.

Appeal from an order of the special term quashing the writ of certiorari issued herein.

George M. Dwen, for appl’ts; 8. D. Bentley, for resp’ts.

The application for the writ of certiorari in this case was made under the provisions of chap. 269 of the Laws of 1880, to review an assessment of the property of the relator’s made by the assessors of the town of Sodus. A return was made to the writ which appears to have been verified on the 25th of September, 1886, and at a special term held in the county of Monroe, on the 27th of the same month the return appears to have been read on the motion which resulted in the order from which this appeal is taken, and to have been then ordered to be filed. The order quashing the writ appears by a memorandum of the judge contained in the appeal book, to have been granted upon the ground that the relator’s having failed to make and deliver to the assessors a written statement as required by statute, (1 R. S„ 414, sec. 2), on or before the first day of July, should not have the writ.

The appellants counsel contends that the provisions of the statute referred to require the statement therein prescribed to be made only to the assessors of the town where the corporation has its principal office. The point was ruled adversely to the appellant’s contention in The People v. Cassity ( 46 N. Y., 46 ). The ruling was not a mere obiter dictum, as the appellants counsel contends, but seems to have been essential to the conclusion reached by the court.

We are not prepared, however, to concur in the opinion that the failure of the relators to furnish the statement deprives them of the right to review the determination of the assessors. The statute imposes no such penalty. The fourth section prescribes the consequence of such failure, to-wit: a forfeiture to the people of the state of the sum of $250. The courts cannot add penalties to those prescribed by the legislature. The prime object of requiring the statement, is doubtless to furnish the assessors with information that wifi aid them in making the assessment. But the statement is not essential to their jurisdiction, they may act on information derived from other sources; and if they do so, and act erroneously to the prejudice of the assessed corporation, it seems illogical and unjust to deprive the corpopation of the right to review such action. If the corporation should fail to appear before the assessors on the grievance day, and ask to have the alleged errors corrected, the case would be different. Having waived that opportunity, it might well be held that it had no standing to review the action of the assessors; aud that is all that is desired in The People ex rel., v. Com’rs of Taxes ( 99 N. Y., 254 ), cited by the respondents counsel, as we understand the case.

But if the views above expressed are erroneous, it is difficult to see upon what reason a failure to make the statement can be held to deprive the corporation of the right to review the action of the assessors in respect to alleged errors, upon points concerning which the statement, if made, could not have given any information to the assessors. In the

p. 582

present case, the relators complain not only that the assessors have assessed as real estate property of the relators which is not real estate, but also that the assessment is unequal and excessive and that in making it the assessors have ignored and disregarded the proofs made before them by the relators. Upon none of the points named, except the first one, would a statement such as is required by the statute have furnished any information or aid 'to the assessors.

Certain other positions are taken by the respondent’s Qounsel on the argument, as reasons for affirming the order. Attention is called to the fact that the Sodus Bay Company is not assessed, the entire assessment being against the other relator. The petition upon which the writ was allowed, alleges that the railroad which is the subject of the assessment is owned by the Sodus Bay Company and is occupied by the Northern Central Company, under an arrangement between them, by which the latter company, among other things, pays all expenses of operating and maintaining the road, including the taxes assessed thereon.

That allegation is not controverted by the return. Whether the fact so alleged makes the Sodus Bay Company a necessary or a proper party to the proceeding, is a question which we think was not involved in the motion to quash the writ, and does not arise on this appeal. If there is an improper joinder, the remedy for the defect is not by motion to quash the writ, but by motion to strike out the party improperly joined.

It is also urged by the respondent’s counsel, that the petition for the writ is not properly verified. This position resolves itself mainly into the objection that there is no verification as to the Sodus Bay Company. If it is properly verified as to one of the relators, that we conceive is enough upon a motion to quash. The only objection made to the verification on the part of the Northern Central Company, is that the affidavit of Mr. Meade, the superintendent, does not state that either of the relators has “not an officer or director thereof then actually within the county,” but states only that no such officer, etc., “resides” in said county. That is sufficient, we think, within the act of 1880, which does not prescribe the form of the verification, but merely requires that the petition be “ duly verified.”

Next, it is objected that the petition does not allege that the relators are aggrieved, etc., but merely that they “claim” to be aggrieved. There is a preliminary averment in that form, but it is followed, as we read the petition, by positive averments of the errors alleged, and thus the petition follows the statute, which provides that the remedy may be allowed to a party “claiming” to be aggrieved, upon a petition specifying the grounds of illegality, etc. Sec. 1

Lastly, it is urged that the return not having been traversed, is to be taken as conclusive and acted on as true.

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That rule applies to the case of a common law certiorari-, but the statute under which this proceeding is taken, provides no mode of traversing a return by pleading, and it seems to contemplate that notwithstanding the return takes issue with material allegations in the petition, or avers new matter, the court, at the hearing, may order proofs to be taken, and the testimony so taken and reported, shall be considered by the court in making its determination. Sec. 4.

We think the order quashing the writ should be reversed, with ten dollars costs and disbursements, and the motion to quash denied.

Haight and Bradley, JJ.; concur.