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any incorporated company refuses or neglects to pay the taxes imposed upon it, pursuant to articles one and two of this chapter, to bring an action in the supreme court for the sequestration of the property of such corporation and the court may so sequestrate the property of such corporation for the purpose of satis fying taxes in arrear, with the costs of prosecution, and may, also, in its discretion, enjoin such corporation and further proceedings under its charter until such tax and the costs incurred in the action shall be paid. The attorney-general may recover such tax with costs from such delinquent corporation by action in any count of record.

[Revisers' Note.-R. S., pt, I, chap. 13, tit. IV, §§ 21, 23; 8th ed., 1151, L. 1857, chap. 456, § 6; R. S., 8th ed., 1087,

without change of substance.]

The committee added the words " pursuant to articles 1 and 2 of this chapter." There seemed to be some doubt as to the extent of application of the section as originally reported. It now only applies to local assessments of corporations and not to a franchise or transfer tax. It was held in Central Trust Co. v. N. Y. & Northern R. R. Co. (General Term), 15 N. Y. St. Repr. 181, that these proceedings could be properly brought to enforce a franchise tax under the act of 1881.

264. Settlement of conflicting claims to surplus of tax sale. Whenever a surplus from the sale of any property, for unpaid taxes in the hands of the supervisor of a town, shall be claimed by any person, other than the person for whose tax such property was sold, and such claim shall not be settled by a stipulation filed with the supervisor, as provided by this chapter, such claimant may maintain. an action against such person, or such person may maintain an action against such claimant, to recover such money and, for the purposes of such action, the defendant shall be deemed to be in possession of the surplus in the hands of the supervisor. Upon the production of a certified copy of a final judgment, rendered in favor of either party, the supervisor shall pay such surplus to the party recovering the same. No other cause of action shall be joined, nor any set-off or counter-claim be allowed in an action brought pursuant to this section, and if

an execution issue on a judgment rendered in such action, it shall direct that the costs only of such judgment be levied thereon.

[Revisers' Note. R. S., pt. III, chap. 8, tit. XVII, §§ 28-30; 8th ed., 2727, without change of substance.]

ARTICLE XIa.

(Not part of Tax Law.)

Remedies for Illegal Assessment and Taxation.

[Note. The compilation of decisions under this title is taken from Assembly documents for 1889, No. 59, being the report of the Committee of the Senate on Taxation and Retrenchment, which was prepared and printed under the supervision of Mr. Julien T. Davies. Such report being a public document, the editors have incorporated the portions of it under this title that they deem likely to be of interest in connection with the revision of the Tax Laws. They have endeavored, however, to bring the decisions down to date, and have eliminated references to statutes repealed by the Tax Law, or heretofore repealed.]

I. Proceedings by Certiorari Other than Under Laws 1880, Chap. 269 (Article XI of Tax Law).

A common-law certiorari will not lie to a ministerial officer, as a collector of taxes, for the purpose of examining his right to proceed upon process under which he is acting. People ex rel. Onderdonk v. Supervisors of Queens, 1 Hill, 195 (1841). And see People ex rel. Agnew v. Mayor, etc., of New York, 2 id. 9 (1841), which opposes Le Roy v. Mayor, etc., of New York, 20 Johns. 430 (1823).

The remedy of a person aggrieved by a school district meeting, or by the trustees of a school district, is by appeal to the commissioners of common schools of the town. If the commissioners err, a certiorari to them may lie, but it will not be granted to the trustees to review their proceedings, or those of a district meeting. Storm v. Odell, 2 Wend. 287 (1829).

An order by the court for a supplemental return to a certiorari is an adoption of the original writ. Caledonian Co. v. Trustees of Hoosick Falls, 7 Wend. 508 (1832).

The writ of certiorari at common law, when used for the purpose of reviewing the acts and decisions of special jurisdictions created by statute (in this case a board of supervisors), issues only upon special cause shown to the court, not as a matter of right. People ex rel. Church v. Supervisors of Allegany, 15 Wend. 198 (1836).

A certiorari to the supervisors of a county to return corrected assessment-rolls and warrants will not be sustained. Id.

That certiorari will not lie to supervisors after roll is in collector's hands, see People ex rel. Onderdonk v. Supervisors of Queens, 1 Hill, 195 (1841).

If assessors, in estimating the value of annual wheat rents, err in estimating the value of wheat per bushel too high, the Supreme Court has no jurisdiction to review it. Livingston v. Hollenbeck, 4 Barb. 9 (1847).

The assessment of property is a judicial act upon which certiorari will lie, but to make the assessment legal the assessors must have jurisdiction of the particular case or they are answerable for damages. In determining whether they have jurisdiction in a given case they do not act judicially. Prosser v. Secor, 5 Barb. 607 (1849).

Upon a common-law certiorari the court will not examine the proceedings returned further than to ascertain whether the inferior tribunal has kept within its jurisdictional limits. People ex rel. Griffin v. Mayor, etc., of Brooklyn, 4 N. Y. 419 (1851).

As the certiorari goes to review a judicial act a consummated judicial decision — a proper return to such writ will bring up as a part of the record whatever entered into, or was necessarily passed upon, in the decision of the question sought to be reviewed. Magee v. Cutler, 43 Barb. 239 (1864).

After a tax has been levied and collected certiorari will not be granted to review the assessment, since the commissioners of taxes have no power to correct the assessment-roll after it has been delivered to the supervisors. People ex rel. Metropolitan Bank v. Commrs. of Taxes, 43 Barb. 494 (1865).

A certiorari will not be allowed to enable a party to recover back by action money paid as a tax. Id.

Upon certiorari to review an assessment, the return of the assessors stated that they had delivered the roll to the supervisor of the town and had no further control over it. Held, that while, before its delivery to the collector with the warrant, the assessment-roll could be reached by certiorari to the supervisor, or to the board of supervisors, and he subject to review by the court, it could not be corrected under that writ after the collector had so received it. People ex rel. Raplee v. Reddy, 43 Barb. 539 (1865).

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Where the return to a certiorari shows that the assessors have perfected the assessment-roll and delivered it to the supervisor of the town, the writ, as to them, will be dismissed. People ex rel. Buffalo & State Line R. R. Co. v. Fredericks, 48 Barb. 173 (1866).

If the assessors err in their decision upon an application to correct their assessment made July 1, or to reduce the amount thereof, such error can be reviewed upon certiorari at any time before the roll is delivered to the supervisors, but cannot affect the validity of the tax afterward imposed, they having jurisdiction to assess it. Boyd v. Gray, 34 How. Pr. 323 (1867).

The only questions the court will consider upon certiorari are whether the assessors had jurisdiction and kept within it. Id.

Where a foreign insurance corporation did not bring certiorari to review the assessment,- held, that they could not question the legality of the tax in a proceeding to enforce its payment. Smyth v. International Life Assurance Co., 35 How. Pr. 126 (1868).

Under a common-law certiorari, the sufficiency of the facts stated in an affidavit in support of the relator's claim to be relieved from an as

sessment, decided adversely by the assessors, may be reviewed by the courts. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154 (1869).

Certiorari lies to the county judge to review the proceedings had before him to authorize the issue of bonds in aid of a railroad under Laws 1869, chap. 907, page 2303, although a record of his judgment has been filed with the county clerk. Id.

Upon an application to review the proceedings of assessors on the ground that the relators' bank stock was assessed at par value, while the other property in the city was not assessed at its true and full value, held, that the proceedings should be sustained on the ground of the public inconvenience which would result from granting the relief sought, and because in the valuation of property assessors act judicially. People ex rel. Beadle v. Newton, 2 Alb. L. J. 437 (1870).

Upon a common-law certiorari it is the duty of the court in addition to inquiring into the question of the jurisdiction of the tribunal over the parties and subject-matter, to examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether in making it any rule of law affecting the rights of the parties has been violated. People ex rel. Haines v. Smith, 45 N. Y. 772 (1871); affirming 3 Lans. 291 (1871).

When the evidence presented to the assessors by an applicant for a reduction of an assessment is uncontradicted, and the facts clear beyond dispute, they must be governed by such evidence, and their refusal to act upon it may be the subject of review on certiorari. People ex rel. American Linen Thread Co. v. Assessors of Mechanicville, 6 Lans. 105 (1871).

They should hesitate to reject the positive affidavit of the applicant.

Id.

The case must be an extraordinary one which will authorize a review' of the assessors' judgment as to valuation. People ex rel. Westbrook V. Village of Ogdensburg, 48 N. Y. 390 (1872).

The relator, a taxpayer, obtained a writ of certiorari upon the ground that the defendants, assessors, had omitted to make the proper entries required by the Revised Statutes, as amended by Laws 1853, chap. 654, p. 1240; Laws 1857, chap. 456, vol. 2, p. 1, in respect to the Richmond County Gas-Light Company, and had undervalued its property $226,600. It appeared that prior to the issue of the writ, the roll had been delivered to the supervisors. Held, that the writ should be quashed. People ex rel. Marsh v. Delaney, 49 N. Y. 655 (1872).

A person having no interest in the subject of the litigation, and whose interests or rights are not affected by the proceedings sought to be reviewed cannot claim the writ. People ex rel. Sheridan v. Andrews, 52 N. Y. 445 (1873).

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The objection that the relator was not the person entitled to sue out the writ will not be heard first in the Court of Appeals. Id.

Where a claim, made to the supervisors under Laws 1867, chap. 938, p. 2323, for the repayment of the portion of the amount assessed on the capital of a bank which was invested in United States stocks, was rejected, held, that the court could, upon certiorari, reverse the erroneous decision, leaving the party aggrieved to such further remedy by mandamus, or otherwise, as the law gave it, in case of further refusal by the board to repay. People ex rel. Oneida Valley Nat. Bank v. Supervisors of Madison, 51 N. Y. 442 (1873).

Upon certiorari to review the proceedings of supervisors who refused to repay the amount of an assessinent upon capital invested in United States bonds, as provided for by Laws 1867, chap. 938, p. 2323,- held, that, since under Laws 1863, chap. 240, p. 435, such portion of the capital could not be lawfully assessed, nothing was to be taken against the relator because it did not appear before the assessors and object to the assessment or because it voluntarily paid the tax. Id.

Unreasonable delay in applying for a certiorari is a ground for quashing the writ even after a hearing on the return. People ex rel. Davis v. Hill, 53 N. Y. 547 (1873).

The writ issues in the sound discretion of the court, upon special cause shown, and, when issued, will be superseded if the remedy sought be inconsistent with the interests of public justice and convenience. People ex rel. Williarus v. Assessors of Albany, 2 Hun, 583 (1874).

So held in quashing a writ under which it was sought to set aside assessments for county charges, so far as they affected the relator. Id.

The question whether the statutory exemption embrace the whole premises of a school or was contined to the land upon which the building stood, being decided adversely to the school by the commissioners,— held, a proper one for judicial determination on certiorari. People ex rel. Academy of the Sacred Heart v. Commrs. of Taxes, 6 Hun, 109 (1875).

The return of the assessors stated that they assessed the real estate of the relators at one-third of its true value as they did all other property in the town. Held, that the court would not reduce the assessment to one-third the proved value of the relators' property. People ex rel. Rome, etc., K. R. Co. v. Dixon, 8 Hun, 178 (1876).

Certiorari will not lie to review the action of assessors after their ́action has been consummated and put beyond their recall, as in the case of bonding a town for a railroad, after the bonds had been delivered. People ex rel. Corwin v. Walker, 68 N. Y. 403 (1877).

Certiorari will not lie to the commissioners of taxes after the roll his left their hands, and been filed with the comptroller, to correct an assessment clearly erroneous, nor can the comptroller be required thereby to correct the record. The proper remedy is an action against the city to vacate the assessment. People ex rel. Law v. Commrs. of Taxes, 9 Hun, 609 (1877).

Certiorari to review the action of the State assessors cannot be had at the instance of the board of supervisors. The towns and the tax

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