FIRST DEPARTMENT, DECEMBER TERM, 1902. [Vol. 77, the premises on the assessment roll at $125,000. The relator made an application to the defendants for a reduction of the same. In this application he showed that in the year 1898 the premises rented for $23,365, and in 1899 and 1900 it had fallen to $19,266, and that the value of the unrented space exceeded $1,000; that the total disbursements for taxes, fixed charges and necessary operating expenses during the said three years averaged $17,803.33, leaving an annual net income of $1,699.67, which income was greater in the year 1898 and less in the year 1900; that, assuming the real value of the property to be $125,000, as assessed in 1901, the average net income would be one and three-tenths per cent of such valuation ; that in 1899 the assessed valuation of the premises was $90,000; that in 1900 it was $108,000, and in 1901 $125,000; that in 1898 the taxes amounted to $1,876.55, in 1899 to $2,210.80, and in 1900 to $2,427.50. The application further states that this is unjust and unreasonable; that the value of property in Fulton street had declined for several years, and requests that the assessment be reduced to the sum of $75,000, which is a fair and reasonable value of the premises. Upon this application the defendants caused the property to be re-examined by the deputy who made the first examination, and he reported that the assessed valuation of the property is "equal and in proportion to similar property in the said First Tax District." And thereupon the defendants denied the application and confirmed the assessment. The relator then sued out a writ of certiorari to review this ruling of the commissioners. The petition for the writ set out the application in full and submitted in addition thereto a table setting forth the assessed value of several pieces of property in the vicinity of the property in question and claimed that a comparison of the properties therein mentioned with the property of the relator would show that the assessment was disproportionate and unequal. In the table submitted in the petition the market value of the properties is not disclosed, nor is the market value of the relator's property stated. The relator subsequently moved for a reference and for leave to amend the petition, and the defendants moved at the same time to quash the writ. The motion for a reference was granted and the referee was directed to allow numerous amendments to the petition, including an amendment setting forth the claim of over App. Div.] FIRST DEPARTMENT, DECEMBER TERM, 1902. valuation. From the whole of the order thus made the defendants appeal. Pursuant to the provisions of section 895 of the charter (Laws of 1897, chap. 378) the application for a reduction of the assessed valuation is required to be in writing and must state the grounds of objection thereto. The application is the matter which sets the assessors in motion in review of the assessment, and the case made by it must show that the relator is entitled to relief; he must stand or fall upon the grounds of error averred therein and is limited in review of the same by writ of certiorari to the case which he then makes. (Matter of McLean, 138 N. Y. 158.) If other objections in fact existed at the time when the application was made, but are not stated therein, they are not available upon a review. In the case last cited it was held that the relator would be precluded from urging that the assessors had no jurisdiction to levy the tax unless such point was taken in the application. It is evident, therefore, that the court was without authority to consider matters averred in the petition or other papers of the relator which were not embodied in the application presented to the commissioners. So limited, it is clear that there was no basis from which an overvaluation of the property appeared, as there is nothing contained in the application showing the market value of the property assessed or that it was higher than other property similarly situated. This ground must be made distinctly to appear before the commissioners are authorized to act upon the application, and the claim must be distinctly made. (People ex rel. Broadway Improvement Co. v. Barker, 14 App. Div. 412.) The relator, therefore, failed to make out a case showing any ground for relief based upon overvaluation in the application which he made; and amendments to his petition cannot enlarge the case contained in the application. If we consider the petition as amended, the same result follows. The only addition in this respect which is made thereto is a schedule of assessed valuations upon a number of pieces of property. The only averment in connection therewith is, that a comparison of the premises owned by the relator with the others contained in the table shows that the value assessed thereon is much greater than that assessed upon any other property similarly situated, and in market value is entirely disproportionate and unequal. There is FIRST DEPARTMENT, DECEMBER TERM, 1902. [Vol. 77. nothing showing the market value of the particular pieces of property so scheduled, or the market value of the relator's property; consequently, there is no basis, even under the petition, for any relief, and, therefore, there is nothing to show that the relator will pay more than his due share of the aggregate tax. (People ex rel. Warren v. Carter, 109 N. Y. 576.) The relator must, therefore, rest upon his right to review by showing that his property has been overvalued. The proof bearing upon this statement relates to the depreciation in rental value of the property, the whole of which we have heretofore set out. In People ex rel. Sutphen v. Feitner (45 App. Div. 542) it was held that it was incumbent upon the relator to show, in order to establish overvaluation, that his property was assessed at a greater sum than that for which under ordinary circumstances it would sell. In that case it was stated "that the market value of the property had not increased since 1895, and that the ability to sell the property had, in fact, decreased; and then were stated the sums at which the property was assessed in 1895 and 1896;" there was nothing to show that in these years it was assessed at its true market value. This averment was held insufficient to establish a case of overvaluation. In the present case there is an entire absence of averment that the assessment is greater than the fair market value of the property, or for a sum greater than that for which the property would sell under ordinary circumstances. The statement is that $75,000 "is a fair and reasonable valuation of these premises, as aforesaid." Clearly, this is insufficient. The rule announced in the Sutphen Case (supra), which is controlling of this appeal, was adopted in People ex rel. Zollikoffer v. Feitner (63 App. Div. 615). The latter case was affirmed on appeal (168 N. Y. 674). In addition to this, it appears in the statement that the "unrented space in the premises exceeded one thousand dollars." How much it exceeded this sum is not made to appear. The relator would not be entitled to escape taxation upon the fair value of his property, even though it were vacant and produced no income. The unrented space cannot be deducted in arriving at its assessed valuation; and from all that appears, it may be that if the whole were rented, the income therefrom, based upon rental values, would show that the assessed valuation was proper. App. Div.] FIRST DEPARTment, DecembeR TERM, 1902. It is clear, therefore, that the relator failed to make a case in his application which entitled him to a reduction of the assessment, and the motion to quash the writ should have been granted. The order should, therefore, be reversed and the writ of certiorari quashed, with fifty dollars costs and disbursements. VAN BRUNT, P. J., PATTERSON and INGRAHAM, JJ., concurred; LAUGHLIN, J., dissented. Order reversed and writ of certiorari quashed, with fifty dollars costs and disbursements. 433 1 89 2497 433 80 1288 78 In the Matter of the Application of THE CITY OF NEW YORK, Appel-f 78 JOHN J. QUINLAN and Others, Commissioners of Estimate and Fees of commissioners of estimate and assessment in the city of New York—what proof as to the number of days consumed must be furnished — charges for meetings at which nothing is done. Section 998 of the Greater New York charter (Laws of 1897, chap. 378, as amd. 28 FIRST DEPARtment, DecemBER TERM, 1902. [Vol. 77. books and accounts of the proceeding, who deposes that the expenses of the proceeding, other than the charges of the commissioners, are a certain sum and that the bill of costs of the commissioners is in all particulars correct, do not constitute such proof of the justice of the charges as the section requires. The commissioners appointed in such a proceeding are not entitled to charge fees for attending meetings at which nothing is done or which are unnecessarily adjourned, even though the failure to do anything and the unnecessary adjournments are due to the action of the corporation counsel. APPEAL by the petitioner, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of July, 1902, taxing the costs, charges and expenses of the commissioners of estimate and assessment appointed in the above-entitled proceeding. John P. Dunn, for the appellant. Charles Strauss, for the respondents. HATCH, J.: The respondents were appointed in a proceeding upon the part of the city to acquire title to a public park lying between Spuyten Duyvil road and the New York Central railroad. The proceeding involved an assessment of damages upon nine parcels of land, in area less than six and three-quarter city lots. By section 998 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) it is provided that the costs, fees and expenses in such a proceeding, required by law to be taxed, shall be stated in detail in the bill of costs, and shall be accompanied by such proof of the reasonableness and necessity thereof as is now required by law and the practice of the Supreme Court upon taxation of the costs and disbursements in other special proceedings. No unnecessary costs or charges shall be allowed. Section 999, as thus amended, imposes the duty upon the corporation counsel to present to the justice taxing the costs his certificate, in writing, that the items of costs, charges and expenses have been audited and examined by him, and also setting forth the result of such audit and examination. The commissioners upon their application for an assessment of |