Opinion
Argued February 28, 1918
Decided March 12, 1918
William P. Burr, Corporation Counsel ( William H. King and Charles J. Druhan of counsel), for appellants.
Joseph E. Haggerty, M.F. McGoldrick and Joseph B. Uniacke for respondent.
Relator was assessed in the year 1916 on the value of a parcel of real estate, $45,000. Under sections 21-23 of the Tax Law, in all cities the value of the land exclusive of buildings thereon is set down in one column, before the column in which the value of the real estate is set down. (See, also, Greater New York Charter, sections 889, 892.) The assessment included the item of value of real estate unimproved, $12,000. Relator claimed an exemption from taxation to the extent of $33,000 for the value of the improvements on the ground that they consisted of "a building in course of construction and not ready for occupancy, commenced since the preceding first day of October." Section 889-a of the New York charter (L. 1901, ch. 466) provides that such a building "shall not be assessed." The question litigated below was whether the building was in course of construction and not ready for occupancy, and the court was justified in finding in favor of the relator on that issue. The building was not ready for occupancy although some portions of it were, but nothing suggested that the relator had sought unfairly to take advantage of the provisions of the charter. The assessment was accordingly reduced to $12,000, the assessed value of the land exclusive of the building thereon.
Appellants now contend that the writ of certiorari obtained to review the assessment should have been quashed because the relator charged illegality when he should have charged overvaluation and that he is precluded from raising the issue of overvaluation. We so held in the case of People ex rel. Soeurbee v. Purdy ( 179 App. Div. 748; affd., 222 N.Y. 657), where a motion to quash the writ was made on that ground. The objection is highly technical. The sufficiency of the petition was not challenged in this case. No motion to quash the writ on that ground was made. The sole ground on which the appellant moved to dismiss the proceedings was that the relator had failed to show that his building was not completed and ready for occupancy. The figures of the taxing officers are prima facie evidence of the valuation of the unimproved real property and they were not questioned upon the hearing. If the question had been raised, the court had power to correct by amendment all defects in matters of procedure and award the appropriate relief. The Code of Civil Procedure, section 2148-a, in effect April 7, 1915, has somewhat liberalized the strict rules on this point. The case should not be disposed of unnecessarily on nice distinctions between an illegal assessment of the building and a valuation of the property excessive because the value of the building was included. "The total assessment only can be reviewed" (Tax Law [Cons. Laws, ch. 60], §§ 21-23; People ex rel. Strong v. Hart, 216 N.Y. 513), and, strictly speaking, the buildings as such are not assessed separately, but in reviewing the total assessment in a case where section 889-a of the New York charter applies, we may assume, in the absence of evidence to the contrary, that the assessment is erroneous to the extent of the difference between the value of the unimproved real estate as shown by the assessment roll and the total assessment. The peculiar facts permit that question to be determined in the absence of a timely objection to the sufficiency of the writ.
The order of the Appellate Division should be affirmed, with costs.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and ANDREWS, JJ., concur.
Order affirmed.