Opinion
May Term, 1902.
David Rumsey, for the appellants.
Charles E. Hotchkiss, for the respondent.
The relator obtained a peremptory writ of mandamus compelling the commissioners of taxes and assessments of the city of New York to remit the tax for the year 1901, levied upon certain personal property alleged to belong to him as the general guardian of George P. Bliss, an infant.
The facts set out in the petition, upon which the order directing that the writ issue was based, and such facts were not denied, were to the effect that at the time the assessment was made and for a long time prior thereto, neither the relator nor his ward resided in the city of New York, but, on the contrary, then and for a long time previous had resided in London, Eng.; that the relator did not apply to the commissioners of taxes and assessments during the time provided by statute in which such applications might be made to have the assessment corrected, for the reason that during that time he was "travelling on the continent of Europe, and was unaware that any assessment had been levied against him as guardian of George P. Bliss;" but that he thereafter applied and his application was denied, whereupon he obtained the order from which the city has appealed.
Upon the facts presented, the relator was not entitled to a writ of mandamus, and his motion therefor should have been denied. The precise question here presented was determined adversely to the respondent by this court in People ex rel. N Y H.R.R. Co. v. Tax Board ( 55 App. Div. 544; S.C., 166 N.Y. 154). There, we held that a writ of mandamus would not be granted where the relator had a plain, adequate and sufficient remedy at law to correct the grievance of which he complained. It may be assumed, as it must be upon the facts presented, that the assessment was illegal, inasmuch as the relator, by reason of non-residence, was not subject to assessment for the purpose of taxation in the city of New York, and that the commissioners of taxes and assessments acted without jurisdiction in making the assessment which they did, but this did not give the relator the right to resort to this remedy to correct the error. The statute provides a remedy by which assessments may be reviewed, and that is by a writ of certiorari, and it makes no difference whether the review be desired on the ground that the assessment is illegal because the officers making it acted without jurisdiction, or unjust by reason of inequality. ( People ex rel. Cochrane v. Feitner, 44 App. Div. 239.) The reason why the assessment should be reviewed by writ of certiorari, instead of by writ of mandamus, was pointed out in People ex rel. N.Y. H.R.R. Co. v. Tax Board ( supra).
The order granting the writ, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.
VAN BRUNT, P.J., INGRAHAM and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.