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People ex rel. N. Y., Lake Erie & Western R. R. Co. v. Low, 40 Hun, 176 (1886).

§ 252. Return to writ.- The officers making a return to such writ shall not be required to return the original assessment-roll or other original papers acted upon by them, but it shall be suffi cient to return certified or sworn copies of such roll or papers, or of such portions thereof as may be called for by such writ. The return must concisely set forth such other facts as may be pertinent and material to show the value of the property assessed on the roll and the grounds for the valuation made by the assessing officers and the return must be verified.

[Revisers' Note. L. 1880, chap. 269, § 3; R. S., 8th ed., 1114, without change of substance.]

The statute does not require a return to be verified, and if it is false, the remedy is by an action for a false return, and not by motion. People ex rel. Updyke v. Gillon (Sp. T.), 9 N. Y. Supp. 243 (1889).

The return by an officer to a certiorari does not waive irregularities in the failure of the moving party to follow statutory requirements. People ex rel. American Contracting, etc., v. Wemple, 60 Hun, 225; S. C., 38 N. Y. St. Repr. 17; 14 N. Y. Supp. 159 (1891).

Where the writ calls for the original assessment-roll, the return of a sworn or certified copy is proper. Winegard v. Promer (Sp. T.), 5 Misc. 54 (1893).

Where a writ was served on chairman of the board of supervisors, and the return signed by him and the secretary of the board, held sufficient. People ex rel. Toohey v. Webb (Sp. T.), 50 N. Y. St. Repr. 46; S. C., 21 N. Y. Supp. 298 (1892).

§ 253. Proceedings upon return. If it shall appear upon the return to any such writ that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the petition, the court may order such assessment, if illegal, to be stricken from the roll, or if erroneous or unequal, it may order a re-assessment of the property of the petitioner, or the correction of his assessment upon the roll, in whole or in part, in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments of other property upon the same roll and secure equality of assessment. If upon the hearing it shall appear to the court, that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may

direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. A new assessment or correction of an assessment made by order of the court shall have the same force and effect as if it had been so made by the proper officers within the time prescribed by law for making such assessment.

[Revisers' Note.-L. 1880, chap. 269, §§ 4, 5; R. S., 8th ed., 1114, without change of substance.]

This section was amended by the senate committee so as to require a referee to report findings of law and fact. Heretofore referees have reported the evidence merely. This amendment is one which will greatly relieve the courts in cases of this nature.

The burden is on the relator to show that the reduction in the assessment sought should have been granted by the assessors. People ex rel. Green v. Hall, 83 Hun, 375; S. C., 64 N. Y. St. Repr. 752; 31 N. Y. Supp. 956 (1894).

The petitioner must show a state of facts from which a presumption justly arises that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax, and this presumption is not raised by proof that in a particular instance property is assessed at a proportionately lower valuation than his own. Nor does it make any difference that the assessments compared were of contiguous property. The conclusion of the court below, that there was an overvaluation, if supported by evidence, is not reviewable in the Court of Appeals. People ex rel. Warren v. Carter, 109 N. Y. 576 (1888); reversing in part S. C., 47 Hun, 446 (1888).

When a taxing officer is charged with a duty of determining the amount of assessment, his determination will not be disturbed unless clearly shown to be erroneous. People ex rel. Penn. R. R. Co. v. Wemple (Sp. T.), 47 N. Y. St. Repr. 695; 29 Abb. N. C. 85 (1892).

This act was designed to destroy, in respect to the writ of certiorari to review assessments, the conclusiveness of the return. People ex rel. Grace v. Gray, 45 Hun, 244 (1887).

The return to a certiorari, under the act of 1880, is not conclusive, as the object of the act is to have a review, and on additional evidence, if necessary. People ex rel. Troy Union R. R. Co. v. Carter, 52 Hun, 488; S. C., 24 N. Y. St. Repr. 104; affirmed, 117 N. Y. 625 (1889).

Where a petition, by a person assessed, to obtain a writ of certiorari under chap. 269 of the Laws of 1880, to review an assessment of personal property, alleges that the assessment of the petitioner was illegal, erroneous and void upon the ground that she was not then, and had not been at any time during the year for which such assessment was levied, the owner of any personal property in the village, in behalf of which such assessment had been levied, which was the subject of taxation, a case is

presented where the court is justified in appointing a referee, under section 4 of such act, to take evidence and to report the same to the court. People ex rel. Dwight v. Platt, 92 Hun, 349 (1895).

Where a writ of certiorari to review an assessment was made returnable at the county clerk's office, instead of at a Special Term, by the act of 1880, the court has power to amend it nunc pro tunc. People ex rel. N. Y. C. R. R. v. Cook, 62 Hun, 303; S. C., 42 N. Y. St. Repr. 245; 17 N. Y. Supp. 546 (1891).

Certiorari to review an assessment is a special proceeding, and not an action or proceeding to be conducted according to the strict rules of the common law, either in the admission of evidence or otherwise. Id. To the same effect, also, is People ex rel. Warren v. Carter, 47 Hun, 446 (1888).

Upon certiorari to reduce an assessment increased from $42,500 to $60,000, in a subsequent year, relator's witnesses testified that the value of the property was $80,000 to $105,000, and the assessors produced evidence that it was worth $175,000 to $200,000, and that adjacent parcels selected by relator as showing inequality were assessed relatively higher than his,- held, that an order dismissing the writ should be affirmed. People ex rel. v. Van Nostrand, 53 N. Y. St. Repr. 855; S. C., 24 N. Y. Supp. 513 (1893).

In People ex rel. Hartford & Conn. West. R. R. Co. v. Frost, 10 N. Y. St. Repr. 78 (1887), the court said that there was no reason to doubt that the assessors discharged their duties with fairness, and exercised due diligence to learn the value of the property subject to their action, and that there was no evidence of any prejudice against the relators, and no reason to suppose that the property of the railroad has been valued at a higher rate than other property in the town. Equality in taxation is the result to be sought, and when it exists, no ground for interference is shown. Where assessors assert on return of a writ of certiorari, that they have assessed all the real estate at one-fifth of its value the admitted violation of their duty in this respect renders their statement in respect to a similar assessment of relator's real estate unreliable. People ex rel. D. & H. Canal Co. v. Ganley, 29 N. Y. St. Repr. 130; S. C., 8 N. Y. Supp. 563 (1890).

In a particular case it was held that the question of proportionate valuation was properly disposed of at Special Term. People ex rel. Eckerson v. Christie, 14 N. Y. St. Repr. 525 (1888).

In disregard of this last decision the assessors assessed the property for the same amount the next year. The court held that when an assessment had been once fixed by a higher tribunal that must be the guide of the inferior tribunal until a changed condition of affairs should require different action. Matter of Eckerson, 17 N. Y. St. Repr. 689 (1888).

Upon certiorari to review an assessment of real estate, the deeds of conveyance of sundry parcels introduced by the relator to show presumptively the consideration of the sales, held, competent evidence. People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 Hun, 592 (1885).

Upon certiorari to review an assessment on the real estate of a railroad, the earning capacity, rather than the cost of construction, is the proper test of value. Id.

Laws 1880, chap. 269, does not permit one complaining of an assessment, who has omitted to avail himself of the opportunity to correct it by application to the tax commissioners, under Laws 1859, chap. 302, and after it has been confirmed by lapse of time, to arrest the collection of the tax. People ex rel. Mutual Union Tel. Co. v. Commrs. of Taxes, 99 N. Y. 254 (1885). To the same effect, also, is People ex rel. Hoffman v. Osterhoudt, 24 W. Dig. 101 (1885).

An objection that the relator in certiorari had not properly presented his proofs to the assessors on the third Tuesday of August, and then sought to have the assessment reduced,- held, not available at General Term, where it did not appear by the record to have been raised at Special Term. People ex rel. Rome, etc., R. R. Co. v. Hicks, 40 Hun, 598 (1886).

A judgment of the Special Term, rendered upon returns made by commissioners to a certiorari under chap. 269 of the Laws of 1880, should not be reversed on a question of fact unless the finding is against the preponderance of evidence. People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 Hun, 592 (1885).

The word "roll" in Laws 1880, chap. 269, means the entire assessmentroll of the ward where the property is situated. People ex rel. Gerry v. Tax Commrs. of New York, 5 N. Y. St. Repr. 311 (1886).

As to whether the objection of inequality cannot be raised in the city of New York, because of Laws 1885, chap. 311, see People ex rel. Manhattan Ry. Co. v. Coleman, 1 N. Y. Supp. 112 (1888); People ex rel. New York El. R. R. Co. v. Coleman, id. 551 (1888), and § 821 of the New York City Consolidation Act quoted, post.

In these last cases an order of reference was sustained, giving to the relators opportunity to adduce additional evidence to that submitted to the tax commissioners. See People ex rel. Twenty-third Street R. R. Co. v. Commrs. Taxes, 91 N. Y. 593 (1883); People ex rel. Albany & Greenbush Bridge Co. v. Weaver, 34 Hun, 321 (1884).

§ 254. Costs.- Costs shall not be allowed against the officers whose proceedings may be reviewed under any such writ unless it shall appear to the court, that they acted with gross negli gence or in bad faith or with malice in making the assessment complained of. If the writ shall be quashed or the prayer of the petitioner denied, costs shall be awarded against the peti tioner, not exceeding the costs and disbursements taxable in an action upon the trial of an issue of fact in the supreme court. [Revisers' Note.- L. 1880, chap. 269, § 6; R. S., 8th ed., 1115,

without change of substance.]

In proceedings under Laws 1880, chap. 269, to review an assessment for the purposes of taxation, although the assessment is ordered to be reduced, the court cannot direct that the costs of the relator be included in the next tax levy, and, when thus raised, be paid over to him; nor in the absence of proof that the assessors acted with gross negligence, in bad faith or with malice, can costs be awarded against them personally. The rule governing costs in certiorari proceedings generally. Code Civ. Pro., § 2143, is not applicable. People ex rel. Niagara Falls Co. v. Russell, 57 Hun, 53; S. C., 32 N. Y. St. Repr. 20; 10 N. Y. Supp. 391 (1890).

Where the relator instituted proceedings under Laws 1880, chap. 269, to review the assessment of his property which he claimed was exempt, he being a minister of the gospel- held, that the evidence showing the respondents acted in good faith, costs should not be imposed upon them. People ex rel. Mann v. Peterson, 31 Hun, 420 (1884).

Laws 1880, chap. 269, § 6, only relieves assessors from costs upon the hearing at Special Term on the return of the certiorari. Costs on appeal (7) are to be given or withheld in the discretion of the court as provided on an appeal from an order under Code of Procedure, § 3239. People ex rel. Smith v. Commrs. of Taxes, 101 N. Y. 651 (1886). See, also, People ex rel. Eckerson v. Christie, 14 N. Y. St. Repr. 525 (1888).

For an instance where assessors were charged with costs, see Matter of Eckerson, 17 N. Y. St. Repr. 689 (1888).

Assessors, or other persons whose proceedings may be reversed under chap. 269 of the Laws of 1880, should not be charged with costs unless they acted with gross negligence, in bad faith or with malice, and where a question of law, not free from doubt, is submitted to assessors, and their action upon it is subsequently reversed, costs ought not to be awarded against them. People ex rel. Canaday v. Williams, 90 Hun, 501 (1895).

§ 255. Appeals. An appeal may be taken by either party from an order, judgment or determination under this article as from an order, and it shall be heard and determined in like manner as appeals in the supreme court from orders. All issues and appeals in any proceeding under this article shall have preference over all other civil actions and proceedings in all courts.

[Revisers' Note.-L. 1880, chap. 269, § 7; R. S., 8th ed., 1115, without change of substance.]

An appeal to the Court of Appeals from a decision of the General Term affirming a reduction of an assessment is limited to sixty days. Code of Pro., § 1325, does not apply. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610 (1885); affirming 36 Hun, 592 (1885).

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