People ex rel. Hermance v. Board of Supervisors

17 N.Y. Sup. Ct. 545

Opinions

Learned, P. J. :

A distinction has been laid down in the Court of Appeals between an erroneous and an illegal assessment. (Bank of Chemung v. City of Elmira, 53 N. Y., 53.) The former, where the assessors have the power to act, but err in its exercise ; the latter, where they have no power.

In the Matter of New York Catholic Protectory (15, S. C. N. Y. [8 Hun], 91), holds that, in the latter case, the statute under which the present application is made applies.

In the Matter of Hudson City Savings Institution (12 S. C. N. Y. [5 Hun], 612), holds that, in the former case, the statute does not apply.

The Pells Case, in the Commission of Appeals, was the case of assessment of United States bonds. It was, therefore, an illegal, not an erroneous assessment. And the decision in that case determines nothing as to the power of the county judge to review on the ground of error, an assessment made by the proper officers.

The affidavit of the applicants in this present case shows only that they were assessed for a greater amount than was just, or, rather, .that they were assessed for personal property when they had none for which they were liable. This is substantially an over-valuation ; an error in judgment. It is not, as it was in the case of the Bank of Chemung v. Elmira, an assessment illegal, and for which the assessors had no jurisdiction.

To give the other construction to the statute (Laws 1871, chapter 695), which is urged by the applicants, would be to make the county judge a court of x’eview of evexy alleged ovex’-valuation of assessors. This cannot be the reasonable construction of the statute, especially as it speaks only of “illegal and improper” taxes.

As the decision of this court, in the case above cited, is not reversed by the decision in the Pells Case, it should be followed.

The order should be affirmed, with ten dollars costs, etc.