Opinion
March, 1904.
Fred Ingraham, for the appellant.
George Wallace, for the respondents.
The Special Term quashed the writ of certiorari on the ground that no complaint was made on grievance day, and hence there was not compliance with section 250 of the Tax Law (Laws of 1896, chap. 908) which provides that the petition must show that "application has been made in due time to the proper officers to correct such assessment." The learned counsel for the appellant contends that such an application and an allegation thereof were unnecessary. But the disposition that I am about to make of this appeal makes a decision upon that point for the present at least unnecessary. The petition, which being like unto a pleading need but contain conclusions of fact without supporting evidence ( Matter of Corwin, 135 N.Y. 245, 252), shows that the assessors on or about August 1, 1903, completed the roll and caused notice thereof to be advertised, fixing August 18, 1903, as "the first day upon which objections thereto would be heard," and that while the roll was in their hands, with power of amendment and correction, and before the time for filing or the filing thereof the petitioner appeared and protested against the assessment for the illegality thereof before the assessors at their office, while the board was in session, all members being present, but that the board refused to receive or to hear the protest, stating that it could not receive and consider it, and that it would not strike any of the proposed assessments from the roll. The petition also shows that the board asserted that the protest was too late, as the preceding day was advertised as the day when protests might be presented, and that at its end the board had adjourned without fixing any other time for presentation.
The board, pleading affirmatively, admits the appearance of counsel on the nineteenth of August, and assert that he was informed that the time for the presentation of protests had passed, and that it had no authority to receive or to entertain complaints. The notice for presentation itself is not in the record, and the board does not deny or traverse the allegation of the petition that August eighteenth was named in the notice as the first day upon which objections would be heard. It does not deny that when the petitioner appeared on the following day it was in session, with all of the members present, and at the place named. Although the petitioner pleads that the assessors stated to him that the board had adjourned without fixing any other time for presentation, the board does not thus plead. It pleads: "That deponents did meet at the time and place specified in such notice to hear and determine all complaints in relation to such assessments; that no one appeared before them in relation to the assessments complained of by the relator herein, and no complaint whatever was made in relation thereto, either verified or otherwise, and after four o'clock in the afternoon deponents adjourned, no complaints having been made either by the relator or by any person in its behalf." The position of the assessors seems to be that they had no power to entertain any protest after the eighteenth of August. But the statute does not in terms thus provide.
Under sections 35, 36 and 38 of the Tax Law (as amd. by Laws of 1901, chap. 358) the assessors have the time intervening the third Tuesday of August and the fifteenth day of September to revise and finally to complete their rolls. Section 250 of the Tax Law does not prescribe that the application must be made on the first day named in the notice, or on the third Tuesday of August, or on any specified day. It reads: "Such petition must show that application has been made in due time to the proper officers to correct such assessment." As August eighteenth was the earliest day when such application could be made (§ 35), it cannot be presumed that an application made on August nineteenth was not made in due time so far as the opportunity for hearing and correction is concerned. Section 36, which authorizes adjournments from time to time, is almost conclusive upon this point. By the statute the third Tuesday of August is simply made the day when the assessors will meet "to review their assessments." (§ 35.) There is no provision of the law that complaints must be made upon that day or be forever barred, while section 36 prescribes that the assessors shall meet at that time and at the place specified in the notice of completion of the assessment roll to hear and determine all complaints, and for that purpose may adjourn from time to time. It may well be that when the board adjourned on August eighteenth, to come together on August nineteenth, it assumed that perforce of the expiry of August eighteenth, although it was then in session with full powers of correction, the board was powerless to receive protests. Even if it had adjourned without specifically fixing another day for the presentation of protests, and yet, pursuant to adjournment, it had met, and as then assembled, it could, under the law, both have heard and have determined all complaints, the law would be averse to denying rights assured to the petitioner on the ground that the board, mistaking its powers, had not made a technical adjournment.
None of the cases cited by the learned counsel for the respondents is an authority that under this law the complaint must be made upon the third Tuesday of August, if at all. In Matter of Winegard (78 Hun, 58) the relator was held foreclosed by the nature of the objections made to the town assessors (p. 61). And such was the case in Hilton v. Fonda ( 86 N.Y. 339, 345). In People ex rel. Buffalo, etc., R. Co. v. Duguid (68 Hun, 243) there was no appearance, but the petitioner was held excused from laches because one of the assessors, upon the statement that the petitioner could not appear, had assured him that he would be heard upon an adjourned day, which assurance, the court say, was in accord with the letter and spirit of the statute "to adjourn from day to day as may be necessary to hear and determine * * * such complaints." In People ex rel. Mutual Union Tel. Co. v. Comrs. of Taxes ( 99 N.Y. 254) the books were closed by the statute on May first, and the relator made no objection until June sixth. In People ex rel. Western Union Tel. Co. v. Dolan ( 126 N.Y. 166) the court simply refers to its decision in People ex rel. West Shore R.R. Co. v. Adams ( 125 N.Y. 471) wherein it was said: "This court held in the case of People ex rel. Tel. Co. v. Commissioners of Taxes ( 99 N.Y. 254) that a party complaining of an assessment, who had neglected to appear before the assessors or body authorized under the system provided by the tax laws to correct an erroneous assessment and seek his remedy there, could not, after the tax had become confirmed, avail himself of the remedy given by the act of 1880." As I have pointed out ( supra), no application was made in People ex rel. Mutual Union Tel. Co. v. Comrs. of Taxes ( supra) until about six weeks after the books were closed by the statute. Aside from the provision of the statute relative to adjournments, there is authority for holding that the assessors, at that time, upon application, would have had jurisdiction to correct the assessment in the absence of a statutory prohibition to the contrary. ( People v. Supervisors of Westchester, 15 Barb. 607, 614.)
People ex rel. Mutual Union Tel. Co. v. Comrs. of Taxes.
And further, if the notice fixed August eighteenth as the first day, then the petitioner, aside from any question of statutory assurance, in view of the provisions of section 36 ( supra), and of the absence of specific day designated by statute, was lulled to sleep by the form of the notice. The facts are much more in its favor than those which moved the court in People ex rel. Buffalo, etc., R. Co. v. Duguid ( supra).
The order should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.