§ 238. Books and forms to be furnished by the state comptroller. The comptroller of the state shall furnish to each surrogate, a book, which shall be a public record, and in which he shall enter the name of every decedent upon whose estate an application to him has been made for the issue of letters of administration, or letters testamentary, or ancillary letters, the date and place of death of such decedent, the estimated value of his real and personal property, the names, places, residence and relationship to him of his heirs-at-law, the names and places of residence of the legatees and devisees in any will of any such decedent, the amount of each legacy and the estimated value of any real property devised therein, and to whom devised. These entries shall be made from the data contained in the papers filed on any such application, or in any proceeding relat the estate of the decedent. The surrogate shall also enter in such book the amount of the personal property of any such decedent, as shown by the inventory thereof when made and filed in his office, and the returns made by any appraiser appointed by him under this article, and the value of annuities, life estates, terms of years, and other property of any such decedent or given by him in his will or otherwise, as fixed by the surrogate, and the tax assessed thereon, and the amounts of any receipts for payment of any tax on the estate of such decedent under this article filed with him. The state comptroller shall also furnish to each surrogate forms for the reports to be made by such surrogate, which shall correspond with the entries to be made in such book. [Revisers' Note.-L. 1892, chap. 399, § 18, without change.] See Forms Nos. 43, 44. § 239. Reports of surrogate and county clerk. Each surrogate shall, on January, April, July and October first of each year, make a report in duplicate, upon the forms furnished by the comptroller containing all the data and matters required to be entered in such book, one of which shall be immediately deliv ered to the county treasurer or comptroller and the other transmitted to the state comptroller. The county clerk of each county shall, at the same times, make reports in duplicate, containing a statement of any deed or other conveyance filed or recorded in his office, of any property, which appears to have been made or intended to take effect in possession or enjoyment after the death of the grantor or vendor, with the name and place of residence of such grantor or vendor, the name and place of residence of the grantee or vendee, and a description of the property transferred, one of which duplicates shall be immediately delivered to the county treasurer or comptroller and the other transmitted to the state comptroller. [Revisers' Note.-L. 1892, chap. 399, § 19, without change.] 1 § 240. Reports of county treasurer and of the comptroller of the city of New York.- Each county treasurer and the comptroller of the city of New York shall make a report, under oath, to the state comptroller, on January, April, July and October first of each year, of all taxes received by him under this article, stating for what estate and by whom and when paid. The form of such report may be prescribed by the state comptroller. He shall, at the same time, pay the state treasurer all taxes re ceived by him under this article and not previously paid into the state treasury, and for all such taxes collected by him and not paid into the state treasury within thirty days from the times herein required, he shall pay interest at the rate of ten per centum per annum. [Revisers' Note.-L. 1892, chap. 399, § 20, without change.] § 241. Application of taxes.- All taxes levied and collected under this article shall be paid into the treasury of the state for the use of the state, and shall be applicable to the expenses of the state government and to such other purposes as the legislature shall by law direct. [Revisers' Note.-L. 1892, chap. 399, § 21, without change.] § 242. Definitions. The words "estate" and "property," as used in this article, shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this article and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situated within or without this state, over which this state has any jurisdiction for the purposes of taxation. The word "transfer," as used in this article, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed. The words "county treasurer," "comptroller" and "district attorney," as used in this article shall be taken to mean the treasurer, comptroller or district attorney of the county of the surrogate having jurisdiction as provided in section two hundred and twenty-nine of this article. [Revisers' Note.-L. 1892, chap. 399, § 22, without change.] See Matter of Hoffman, 62 N. Y. St. Repr. 245 (Court of Appeals). ARTICLE XI. Procedure. Section 250. Contents of petition. 251. Allowance of writ of certiorari. 252. Return of writ. 253. Proceeding upon return. 254. Costs. 255. Appeals. 256. Refund of tax paid upon illegal, erroneous or un 258. Application to county court where taxpayer has 259. Supplementary proceedings to collect a tax. over. 261. Payment of moneys collected. 262. Collection of deficiency from collector's bondsmen. 263. Attorney-general to bring action for sequestration. 264. Settlement of conflicting claims to surplus of tax sale. Section 250. Contents of petition.-Any person assessed upon any assessment-roll, claiming to be aggrieved by any assessment for property therein, may present to the supreme court a petition duly verified setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or if erroneous by reason of overvaluation, stating the extent of such overvaluation, or if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers, specifying the instances in which such inequality exists, and the extent thereof, and stating that he is or will be injured thereby. Such petition must show that application has been made in due time to the proper officers to correct such assessment. Two or more persons assessed upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition. [Revisers' Note.- L. 1880, chap. 269, § 1; R. S., 8th ed., 1114, without change of substance.] The express provision that the petition must show that application has been made in due time to the proper officers to correct the assessment appears to be new. When Writ is Allowable. The courts have uniformly decided that the writ will only be allowed to review the assessment, upon grounds stated in this section, viz., that the assessment is illegal, or erroneous, by reason of overvaluation, or unequal, and not for the purpose of determining the jurisdiction of the assessing officers, or for inquiring into their title to office; nor to correct an error which the board of supervisors can correct. It seems that Laws 1880, chap. 269, which provides for the allowance of writs of certiorari, furnishes an adequate remedy for the dissatisfied taxpayer and confines him to its adoption in all cases where the illegality of the proceedings of the tax officers consisted, not in a lack of jurisdiction on their part to act, but in the commission of errors which vitiated the assessment and laid it open to cancellation or reversal. U. S. Trust Co. v. Mayor, 144 N. Y. 488; S. C., 64 N. Y. St. Repr. 62 (1895). In proceedings under the act of 1880, it is only when it appears that for one of the reasons alleged in the petition, the assessment is either erroneous, illegal or unequal, that the court has power to act. People ex rel. Commercial Mutual Ins. Co. v. Coleman (Sp. T.), 61 N. Y. St. Repr. 70; S. C., 30 N. Y. Supp. 379 (1894). The provisions of Laws 1880, chap. 269, are to be construed in furtherance of the purpose of the review of erroneous or unequal assessments. People ex rel. Schaeffler v. Barker, 87 Hun, 194; S. C., 67 N. Y. St. Repr. 728; 33 N. Y. 1042 (1895). The writ does not lie where the complaint is not of some error or irregularity in the assessment, but upon the ground that there never was any valid assessment at all, and that the whole roll is void. People ex rel. D. & H. C. Co. v. Parker, 117 N. Y. 86; S. C., 26 N. Y. St. Repr. 698 (1889). The provision of Laws 1880, chap. 269, for review by certiorari of an illegal assessment does not apply where the whole assessment-roll is void. Van Deventer v. Long Island City, 139 N. Y. 133; S. C., 54 N. Y. St. Repr. 510 (1893). A writ of certiorari, under act of 1880, cannot be used to inquire into the title of the assessors. People ex rel. Delaware & Hudson Canal Co. v. Parker, 117 N. Y. 86; S. C., 26 N. Y. St. Repr. 698 (1889). This act contemplates the issue of the writ to officers to review their assessments, not to try their title to office. Injury must be shown or the alleged illegality will be unavailing. People ex rel. Delaware, etc., Canal Co. v. Parker, 45 Hun, 432 (1887); affirmed 117 N. Y. 86. Matter The granting of a writ to a taxpayer, under the act of 1880, is a matter of right, where the relator brings his case within the statutes. of Corwin, 135 N. Y. 245; S. C., 48 N. Y. St. Repr. 238 (1892). Issuance of the writ, under the act of 1880, is a matter of right, if the court has jurisdiction of the persons and the subject-matter. Winegard v. Promer (Sp. T.), 5 Misc. 54 (1893). Assessment, as used in the act of 1880, refers to valuation, and the provisions of that statute were intended to afford a remedy for such intermediate erroneous action which was formerly remediless and do not impair the remedy which has always existed to review a final decision. People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185; S. C., 64 N. Y. St. Repr. 146; 31 N. Y. Supp. 592 (1894). A general allegation that the assessment is unequal and disproportionate, or proof that in a particular instance property is assessed at a lower valuation than relator's, is insufficient. People ex rel. Wechsler v. Harkness, 84 Hun, 445; S. C., 65 N. Y. St. Repr. 607; 32 N. Y. Supp. 344 (1895). Certiorari does not lie to review an assessment before the board of revision has acted thereon. People ex rel. Martin v. Gilon (Sp. T.), 37 N. Y. St. Repr. 645; S. C., 14 N. Y. Supp. 75; appeal dismissed, 128 N. Y. 651 (1891). The rule that a writ of certiorari will not be granted at the instance of a party, who has an adequate remedy by action, applied. People ex rel. Gage v. Lohnas, 54 Hun, 604; S. C., 28 N. Y. St. Repr. 246; 8 N. Y. Supp. 104 (1889). Where the assessment was to "the estate of Mary W. Cryder," it was held that proceedings under this writ would not reach this error or any such error as the supervisors can amend under Laws 1871, chap. 629. People ex rel. Gihon v. Board of Assessors, 6 N. Y. St. Repr. 3 (1886). |