Opinion
May Term, 1896.
Weller Davison, for the appellants.
George Wallace, for the respondents.
The proceedings herein were instituted by petitions, which alleged that the assessments complained of were illegal, erroneous and unequal, and specified therein the particular grounds wherein the claimed defects existed. Writs of certiorari were issued thereon, and, upon the returns to said writs, it disclosed the assessment rolls and the proceedings had and taken by the assessors in respect thereto. At the conclusion of the hearing, so far as important to the disposition of this appeal, the court made the following order: "It appearing that the assessment in said assessment roll * * * is erroneous, in that the assessment is made to the estate of Cornelia M. Stewart, it is ordered, that said assessment be set aside as erroneous."
The authority for this proceeding is found in chapter 269 of the Laws of 1880. The act was passed, as expressed in its title, for the purpose of reviewing and correcting illegal, erroneous or unequal assessments. By section 1 it is provided that a writ of certiorari may be allowed upon petition of the aggrieved party, to review an assessment of real or personal property for the purpose of taxation, when such petition "shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and that the petitioner is or will be injured by such alleged illegal, erroneous or unequal assessments." Section 4 provides: "If it shall appear by the return to such writ that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have power to order such assessment, if illegal, to be stricken from the roll, or, if erroneous or unequal, to order a reassessment of the property of the petitioner, or the correction of such assessment, in whole or in part, in such manner as shall be in accordance with law." It is clear, from a reading of the law, that power is only conferred to order a reassessment or correct the assessment made where it is erroneous or unequal. When it is illegal by the express term of the statute, the assessment must be stricken from the roll, and no other remedy is provided in such case. And it can only be said to be erroneous when it arises by reason of overvaluation. Such is its defined character by the provisions of section 1 which the petition is required to specify. The statute does not in terms or by inference assume to take jurisdiction of errors committed by the assessors unless they fall within the designated class named therein. A petition which alleged that an assessment was erroneous, and specified grounds of error other than the statute provided, would confer no power upon the court to issue the writ; for by section 4, unless it appear by the return that it is erroneous for reasons alleged in the petition, no power exists in the court to make any order in respect thereto, and what shall be stated in the petition to constitute error is clearly defined. It is quite apparent, therefore, that an illegal assessment must be stricken out, and that what is illegal may not be transformed into an erroneous assessment within the meaning of the statute for the purpose of ordering the assessors to make a reassessment. In the present case the petition and the return clearly showed that the assessment of the lands was absolutely illegal and void by reason of its being made to the estate of Cornelia M. Stewart. ( Trowbridge v. Horan, 78 N.Y. 439; Cromwell v. MacLean, 123 id. 474.)
The order, as entered, recites that the assessment is erroneous, but it also specifies in what the alleged error consists, and this appears not to be erroneous as specified in the statute, but illegal, and calling it by another name does not change its character. It was claimed upon the argument that no appeal was taken from that part of the order which declared that the assessment was erroneous, and that, therefore, it must stand. The appeal is from so much of the order as directed a reassessment; this raised the question of power in the court to make such order, and, when it appears from the order that in fact the assessment was illegal, no authority existed in the court to do any other act than to strike it from the roll; consequently, error is shown in that part of the order appealed from which entitles the appellant to relief.
This leads us to the conclusion that the order as made is erroneous and should be reversed, with ten dollars costs and disbursements.
All concurred, except PRATT, J., dissenting, and CULLEN, J., not sitting.
Order so far as appealed from reversed, with ten dollars costs and disbursements.