Miller, P. J.
The assessment made by the assessors was in form, I think, in accordance with the decision of the Court of Appeals, in the case of The People v. Board of Assessors of Brooklyn, (39 N. Y. 81.) That case holds that, as against corporations, the rule of taxation is correct when based upon the amount of capital paid in or secured to be paid in, after deducting -the amount of such capital actually paid out for real estate, assessing the remaining capital at its actual value, and leaving the real estate ^to be assessed the same as other real estate of individuals in the town or ward where situated, at its actual value, whether more or less than the price paid. There is no injustice in such a course, as it would enable the assessors to add to the value of the real estate such an amount as was authorized by the facts. If the real estate has increased in value beyond its first cost, there is no good reason why the increase should not be added. Such an addition does not make a double taxation, but merely compels the corporation assessed to pay taxes for the full value of its property at the time. It .does not prevent the application of the rule established in 39 N. Y. 81, because, in that case the corporation owned a large amount of real estate located outside of the territorial limits of the assessors, and beyond their jurisdiction; and there is no such distinction between the two cases as would authorize a disregard of the doctrine laid down in the case cited.
It is insisted that the assessors erred in refusing to strike out the assessment for personal property, and to .reduce the assessment of the real estate, which the evidence before [284]*284them, upon the hearing, showed did not exceed $45,000 in value.
According to the provisions of the statute, (Sess. Laws of 1851, ch. 176, § 6,) as amended by Session Laws of 1857, (ch. 536, § 6,) whenever any person shall apply to the assessors to reduce the value of his real and and personal estate as set down in the assessment roll, it is made the duty of the assessors to examine such person under oath, &c., and after such examination, “ they shall fix the value thereof at such sum as they shall deem just.”
This statute has been the subject of judicial interpretation in the courts of this State. In The People V. Reddy, (43 Barb. 544,) the applicant, before the assessors, testified that he had not the personal property for which he was assessed; and the court held that the assessors were bound to take his statement on that subject. In reference to the statute,'the court say: “ This provision does not give the assessors any right to fix such value arbitrarily or capriciously. They act judicially in fixing such value, and are called upon to pass upon the evidence adduced before them, and when they have no ground, in such evidence, to fix a valuation different from that sworn to by the person applying for such reduction, they are bound, I think, .tofollow his statement under oath, as much as the assessors were formerly required to fix such value at the sum specified in the affidavit required in such cases,” &c. It is also said, after stating that the object of the amendment was to allow the assessors to make an oral examination of the applicant, as the assessors may think proper: “But the assessors must act upon the evidence before them, like all other officers acting in a judicial capacity, and fix the valuation at just such a sum as will be warranted by the evidence.”
In The People v. Ferguson, (38 N. Y. 92,) Hunt, Ch. J., in discussing the subject- of the duties of assessors in making corrections, says: “It was the duty of the assess[285]*285ors to act upon the evidence before them, and to adjudge how much the actual value of the stock was reduced by those contingent liabilities, and to deduct from the assessment accordingly. The evidence as presented, showed that the reduction would more than equal the surplus, as found by the assessors, and there was nothing in contradiction or disparagement of the evidence. Their action is judicial, and to be governed by the evidence before them.” As the assessors act judicially, they have the power to administer oaths and to hear testimony, and it is their duty to weigh the effect of the evidence; to judge as to its credibility ; compare it with the law, and decide the question which is to be determined. ■ {Barhyte v. Shepherd, 35 N. Y. 251.) IsTor are' the assessors concluded by the statement, alone, of the applicant; they may, in the exercise of their general powers, make further inquiries. {People v. Fredericks, 48 Barb. 173. People v. Halsey, 36 How. 487, 502, 503.)
From the authorities cited, it may be considered as an established principle, that when the evidence is uncontradicted, and the facts clear beyond dispute, the assessors are bound'to act in accordance with, and must be governed by the evidence presented to them; and when there is a' positive affidavit of the applicant, and direct proof, there should be considerable hesitation in disregarding such evidence.
If the person willfully swear falsely, on such examination before the assessors, he is deemed guilty of willful and corrupt perjury, under the provision of the section before cited.
In assessing the value of the stock at par, the assessors based their determination upon the ground, that from information received from other parties, as well as the affidavits before them, they did not believe the statement of the treasurer of the company. So far as relates to the information received from others, I am inclined to think [286]*286that it was a proper subject for consideration, and' might be regarded as a part of the subject matter to be considered, and therefore, upon this ground, the action of the assessors, in assessing the personal property, can be sustained.
A question is raised by the relator’s counsel, as to the right of the assessors to act upon the ex parte affidavits, and it is insisted that they committed an error in assuming to do so, and in using them in the absence of, and without the knowledge of the relators. As it does not appear, from the return, that the assessors did not believe the sworn statements made in the affidavits of the applicant, as to the value of the real estate, the assessment of the same, at the value fixed, must depend entirely upon all the affidavits which actually were used and taken into consideration in arriving at a conclusion as to the amount for which the real estate should- be and actually was assessed.,
The return states,1, that the assessors had before them, and in their possession, at the time of the hearing and at the time they passed upon the application, these ex parte affidavits, but the attention of the relators was not called to the fact that they were then present for use, or that they were or would be used upon the hearing. The affidavits referred to had previously been used upon a special motion in the Supreme Court, between the same parties, and although they may have been in possession of the assessors at the time, it nowhere appears, in the return, for what purpose they held them, or that they actually were used by the assessors at all; or that the facts stated in them were considered in any way, in making up their final determination, and in disposing of the application.
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Miller, P. J.
The assessment made by the assessors was in form, I think, in accordance with the decision of the Court of Appeals, in the case of The People v. Board of Assessors of Brooklyn, (39 N. Y. 81.) That case holds that, as against corporations, the rule of taxation is correct when based upon the amount of capital paid in or secured to be paid in, after deducting -the amount of such capital actually paid out for real estate, assessing the remaining capital at its actual value, and leaving the real estate ^to be assessed the same as other real estate of individuals in the town or ward where situated, at its actual value, whether more or less than the price paid. There is no injustice in such a course, as it would enable the assessors to add to the value of the real estate such an amount as was authorized by the facts. If the real estate has increased in value beyond its first cost, there is no good reason why the increase should not be added. Such an addition does not make a double taxation, but merely compels the corporation assessed to pay taxes for the full value of its property at the time. It .does not prevent the application of the rule established in 39 N. Y. 81, because, in that case the corporation owned a large amount of real estate located outside of the territorial limits of the assessors, and beyond their jurisdiction; and there is no such distinction between the two cases as would authorize a disregard of the doctrine laid down in the case cited.
It is insisted that the assessors erred in refusing to strike out the assessment for personal property, and to .reduce the assessment of the real estate, which the evidence before [284]*284them, upon the hearing, showed did not exceed $45,000 in value.
According to the provisions of the statute, (Sess. Laws of 1851, ch. 176, § 6,) as amended by Session Laws of 1857, (ch. 536, § 6,) whenever any person shall apply to the assessors to reduce the value of his real and and personal estate as set down in the assessment roll, it is made the duty of the assessors to examine such person under oath, &c., and after such examination, “ they shall fix the value thereof at such sum as they shall deem just.”
This statute has been the subject of judicial interpretation in the courts of this State. In The People V. Reddy, (43 Barb. 544,) the applicant, before the assessors, testified that he had not the personal property for which he was assessed; and the court held that the assessors were bound to take his statement on that subject. In reference to the statute,'the court say: “ This provision does not give the assessors any right to fix such value arbitrarily or capriciously. They act judicially in fixing such value, and are called upon to pass upon the evidence adduced before them, and when they have no ground, in such evidence, to fix a valuation different from that sworn to by the person applying for such reduction, they are bound, I think, .tofollow his statement under oath, as much as the assessors were formerly required to fix such value at the sum specified in the affidavit required in such cases,” &c. It is also said, after stating that the object of the amendment was to allow the assessors to make an oral examination of the applicant, as the assessors may think proper: “But the assessors must act upon the evidence before them, like all other officers acting in a judicial capacity, and fix the valuation at just such a sum as will be warranted by the evidence.”
In The People v. Ferguson, (38 N. Y. 92,) Hunt, Ch. J., in discussing the subject- of the duties of assessors in making corrections, says: “It was the duty of the assess[285]*285ors to act upon the evidence before them, and to adjudge how much the actual value of the stock was reduced by those contingent liabilities, and to deduct from the assessment accordingly. The evidence as presented, showed that the reduction would more than equal the surplus, as found by the assessors, and there was nothing in contradiction or disparagement of the evidence. Their action is judicial, and to be governed by the evidence before them.” As the assessors act judicially, they have the power to administer oaths and to hear testimony, and it is their duty to weigh the effect of the evidence; to judge as to its credibility ; compare it with the law, and decide the question which is to be determined. ■ {Barhyte v. Shepherd, 35 N. Y. 251.) IsTor are' the assessors concluded by the statement, alone, of the applicant; they may, in the exercise of their general powers, make further inquiries. {People v. Fredericks, 48 Barb. 173. People v. Halsey, 36 How. 487, 502, 503.)
From the authorities cited, it may be considered as an established principle, that when the evidence is uncontradicted, and the facts clear beyond dispute, the assessors are bound'to act in accordance with, and must be governed by the evidence presented to them; and when there is a' positive affidavit of the applicant, and direct proof, there should be considerable hesitation in disregarding such evidence.
If the person willfully swear falsely, on such examination before the assessors, he is deemed guilty of willful and corrupt perjury, under the provision of the section before cited.
In assessing the value of the stock at par, the assessors based their determination upon the ground, that from information received from other parties, as well as the affidavits before them, they did not believe the statement of the treasurer of the company. So far as relates to the information received from others, I am inclined to think [286]*286that it was a proper subject for consideration, and' might be regarded as a part of the subject matter to be considered, and therefore, upon this ground, the action of the assessors, in assessing the personal property, can be sustained.
A question is raised by the relator’s counsel, as to the right of the assessors to act upon the ex parte affidavits, and it is insisted that they committed an error in assuming to do so, and in using them in the absence of, and without the knowledge of the relators. As it does not appear, from the return, that the assessors did not believe the sworn statements made in the affidavits of the applicant, as to the value of the real estate, the assessment of the same, at the value fixed, must depend entirely upon all the affidavits which actually were used and taken into consideration in arriving at a conclusion as to the amount for which the real estate should- be and actually was assessed.,
The return states,1, that the assessors had before them, and in their possession, at the time of the hearing and at the time they passed upon the application, these ex parte affidavits, but the attention of the relators was not called to the fact that they were then present for use, or that they were or would be used upon the hearing. The affidavits referred to had previously been used upon a special motion in the Supreme Court, between the same parties, and although they may have been in possession of the assessors at the time, it nowhere appears, in the return, for what purpose they held them, or that they actually were used by the assessors at all; or that the facts stated in them were considered in any way, in making up their final determination, and in disposing of the application. It does not distinctly appear from the return, that the assessors held or regarded these affidavits as a portion of the evidence, in deciding the case. There are no distinct rules of practice especially established for the hearing of applications of this character, but it is quite obvious that it would have been but fair, and. eminently proper, that [287]*287the applicant should have" been advised that these affidavits were a portion of the evidence, and would be considered, if such was the intention of the, assessors. They were acting as judicial officers, and the party claiming to be aggrieved had a right to know, at least what written evi-" dence was then before them, and to be used against the applicant.
Whether there was legal error in having these affidavits in the assessors’ possession, without the knowledge of, or a notice to, the applicant, is not important, for they were not "used, if the return is to control. And without passing upon the question whether the assessors could lawfully regard affidavits which were not openly known to the applicant, I am of the opinion, that, in the absence of anything in the return showing that the'se ex parte affidavits were actually used as evidence, and taken into consideration by the assessors, they cannot now be regarded as a part of the proceedings; that the affidavits provided by the relator, were the only evidence before-them on the subject of value of the real estate, and as they are uncoutradicted, the value must stand as there fixed. There was no other evidence besides the affidavits, and, under the decisions, they must be considered controlling and conclusive.
I think that this was a proper case for a certiorari, and that the .proceedings are properly presented to the' consideration of this court.
As the highest valuation fixed for the real estate by the uncontradicted evidence, is $45,000, the assessors should be directed to correct the assessment by striking out $125,000 assessed for real estate, and inserting $45,000 in the place thereof.
Daniels, J., concurred.
Parker, J. I think the defendants weré right in deducting the cost of the real estate from the capital, and taxing the relator upon the balance of the capital stock, at
[288]*288its actual value, as personal property.. The case of The People v. Board of Assessors of Brooklyn, (39 N. Y. 81,) gives a construction to this effect, which settles the question. As to the valuation put upon the remaining stock, after deducting the cost of the real estate, I think the defendants were justifiable, from the circumstances stated by them in their return, in estimating it at par. And so, notwithstanding the cases of The People v. Reddy, (43 Bari. 539,) and The People v. Ferguson, (38 N. Y. 89,) I think the defendants were justified in refusing to govern themselves by the opinion of the witness Viall, as to the value of the real estate; and that.they had the right to act upon their own judgment, on the question of valuation. This is more a matter of judgment and opinion, which the law imposes upon them, independent of testimony, than of fact, to be derived by them, from others. In the cas'es above mentioned, the facts proved were such as the assessors could not be presumed to be cognizant of; and, in such cases, they are not allowed arbitrarily to disregard the evidence. But when the subject of which they are to judge is one of which they are equally cognizant with the witness, and which the statute subjects to their judgment without the necessity of evidence, I do not think it is the intent of the statute, that they are to conform their opinions wholly to those of witnesses who may be called on to give opinions..
But here, it is evident that the defendants have relied upon the affidavits, which had been used in another proceeding, and which the defendants used again in this proceeding, without the knowledge of the relator that they were to be brought into'it. This, upon the plainest principles of justice, and of the course proper in legal proceedings, they had no right to do. We cannot say that the opinion of Viall was overborne by the'unbiased judgment of the assessors. It may have been put aside by the testimony thus improperly brought into the case.
I therefore concur -in the conclusion of my brother, [289]*289Miller, that the assessment should be corrected, by striking out the sum of $125,000, as the valuation of the real estate, and inserting the sum of $45,000 in its place.
[Third Department, General Term, at Albany,
January 2, 1872.
Judgment accordingly.
Miller, P. J., and Parker and Daniels, Justices.]