Opinion
June 28, 1928.
Hubert L. Brown, for the relator.
H.C. Stratton, for the respondents.
The plaintiff by certiorari seeks to review an assessment upon its property made by the defendants for the year 1921. The defendants filed a return setting up certain defenses, among others alleging as a bar a prior adjudication. By an order of this court it was directed that the issue of res adjudicata be first determined and pursuant thereto a trial of this issue has been had.
It appears that the plaintiff brought a proceeding against the assessors of the city of Norwich to review the assessment upon its property for the year 1920. After issue joined, the parties appeared in court and stipulated and agreed upon the form of the decision and judgment which were entered therein. The defendants insist that the decision and judgment then entered constitute a bar to this proceeding. A former adjudication to be available as a plea must have been a previous determination of the same issues between the same parties or their privies. ( Fish v. Vanderlip, 218 N.Y. 29.) In the case at bar the parties are not the same. The assessors for the year 1921 are different from the ones in 1920 and the assessors for the succeeding year were not bound by the acts of their predecessors. ( People ex rel. N.E.D. Meat Co. v. Roberts, 155 N.Y. 408; People ex rel. Eckerson v. Zundel, 157 id. 513.) Neither is the subject-matter the same. (See People ex rel. N.E.D. Meat Co. v. Roberts, supra; People ex rel. Eckerson v. Zundel, supra; People ex rel. American Manufacturing Co. v. Commissioners of Taxes, 104 Misc. 703; affd., on opinion below, 184 A.D. 901.) The determination of the assessors as to the valuation of each piece of property in the city for any certain year would be a separate act and proceeding from their determination in any other year. Changes necessarily occur in the condition and valuation of various pieces of property in a tax district from year to year and it is hardly conceivable that the figures in any one year would be identical with those of any other year as to the entire assessment roll.
The defendants having pleaded res adjudicata, the burden is upon them to establish this defense. ( Bell v. Merrifield, 109 N.Y. 202; Rudd v. Cornell, 171 id. 114.) This burden, I think, the defendants have failed to meet.
If these conclusions are correct, the plaintiff is not precluded by the former determination and is entitled to have the remaining issues heard and determined. I direct accordingly.