Patterson, J.:
. The relator obtained.a writ of certiorari to review, the action, of the commissioners of .taxes, and assessments of the city of New York in fixing the value, for the purposes of taxation for the year 1898, of .certain real estate owned by him situate on Riverside, Drive, between Seventy-second and Seventy-third streets in the.borough of Manhattan. In the petition for the-writ, the relator .claimed, error in the assessment for overvaluation and . for inequality. In their return, the commissioners presented a. statement of their, acts and proceedings, setting forth the method pursued in fixing the value of lands, including the relator’s, namely, that the appraisement thereof was made by a deputy tax commissioner, who stated under oath that, he had examined every house, building, lot, etc.,.within his distriet,. [544]*544and what amount in his judgment such property, “ under ordinary circumstances, would sell” for. The return also' refers' to the making of the annual books and the assessment rolls prepared therefrom, the entry of the relator’s lots on such books by block and lot numbers and the sums fixed upon as the value- of such lots respectively. It then sets-forth that the relator, on or about April 28,-1898, made to the commissioners an application in writing expressive of his- dissatisfaction with the.ainou.nt .of. the -assessment of his property, and asking that it be reduced, and that writing is annexed to and forms part of the return. It states, after referring to the property as vacant lots, as follows: “ He (the relator) finds that the same has been assessed on the Assessment Roll of 1898 at a valuation of $145,000, whereas the same should not have been, in his judgment, valued at more than $69,000, to be in proportion to the assessed.value of adjacent property and in accordance with the marketable value thereof.” I-t further states that “ The market value of the property has not increased since 1895, and the ability to sell the property has in fact decreased. The property was assessed for the year 1895 at $57,000, being increased to $69,000 for the year 1896. It- is vacant property, irregular in shape — and produces no income. Is rock at the curb line, covering all. He, therefore, asks that the same may be reduced to the amount stated.” the commissioners then set forth in tlieir .return that in order that no injustice should be done the relator, they directed the deputy tax commissioner to' re-examine the property and to report whether or not the alleged grievance had any substance; that, in accordance with.such direction, a re-éxamination was made by such deputy tax commissioner. On May 9, 1898, he made a written report to them in the following words: “I have re-examined the property referred to in the within application and report as follows: That the increases' made in these valuations were made to conform to the general increase made in this section, and are fully justified by the market value of the property.” Whereupon the commissioners, upon the evidence before them, “and the relator having submitted no evidence in support of his allegations, * * * determined that the assessment/as originally fixed was just, and, -therefore, confirmed it at that figure.”
. The matter was brought to- a heaving at the Special Term upon the writ, ..petition, return and schedules annexed thereto;'whereupon [545]*545the relator moved for judgment on these papers, which motion was denied. He then moved the court either to take testimony, or to order a reference of the issues raised by the petition and return. “ It appearing to the court that-testimony was not necessary for a proper disposition of the matter,” that motion was denied. Counsel to the corporation then moved to quash the writ, on the ground that it did not appear that the assessment complained of was illegal or erroneous or unequal for any reason alleged in the petition, and that motion was granted. The disposition the court made of the three several motions is contained in one order, from which the relator now appeals.
That the relator was not entitled to judgment upon the papers as presented to the court at Special Term is obvious. There was no •evidence upon which a judgment could be founded. Ñor was he entitled to a reference of the issues. He claims, in substance, that under section 253 of chapter 908 of the Laws of 1896, known as the Tax Law, it became the duty of the court to order a reference because the taking of testimony was necessary for a proper disposition of the matter. He treats the proceeding as if it were an original and independent one in which for the first time evidence in support of the relator’s claims might be offered or produced by him. Support for his contention is sought in the recent decision of this court in People ex rel. Bronx Gas Co. v. Feitner (43 App. Div. 198), in which it was held, in general effect, that in all cases of this character where an issue of fact is raised, the statute contemplates that testimony shall be taken,- and that it was never intended by the Legislature that issues raised by the petition and the return thereto, should be tried in any other way ; that the petition is in the nature of a pleading, and'that where it contains allegations of the grounds upon which the objections to the assessment are based, the terms of the statute requiring a reference, while permissive in form, are nevertheless mandatory. What was held in the Bronx Gas Company case we adhere to, but that was a case in which, as the record before the court disclosed, the relator had, in the preliminary proceedings before .the commissioners of taxes, complied with the provisions of the law which required him to put before the commissioners the full grounds of his objection to the value of his [546]*546property as fixed - by them. It was also assumed' in that case that everything had been done before the commissioners which the relator was bound to do.
By section 895 of the charter of the city of New York (Laws of 1897, chap. 378) it is provided that a person claiming to be aggrieved by the assessed valuation of real and personal estate may make application to the board.of taxes and assessments for a correction of the assessment. “ If such application be made in relation to the assessed valuation of real estate, it must be made in writing,-stating the grou-n-d.— ofnbjeetkrrTEIiereto.’’ It is true that by section 906 of the-charter it is not specifically required that in a petition for a writ of certiorari it shall be set forth in terms that the petitioner has applied to' the commissioners under section .895, but application to the tax board must precede a petition for a writ. A party who neglects to apply to the commissioners to correct an .assessed valuation cannot question it by certiorari. (People ex rel. Mutual Telegraph Co. v. Commissioners of Taxes, 99 N. Y. 254.) The return in this case shows that the relator did so apply.. His application, however, was defective and insufficient. By section 889 of the charter the deputy tax commissioners are to assess property in the several districts assigned, to them, and to state under oath the amount for which in their judgment the property under ordinary circumstances would sell. It was-not alleged by the relator in his application to the board of tax commissioners, nor shown, that his property was assessed at a greater sum than that for which under ordinary circumstances it would sell.
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Patterson, J.:
. The relator obtained.a writ of certiorari to review, the action, of the commissioners of .taxes, and assessments of the city of New York in fixing the value, for the purposes of taxation for the year 1898, of .certain real estate owned by him situate on Riverside, Drive, between Seventy-second and Seventy-third streets in the.borough of Manhattan. In the petition for the-writ, the relator .claimed, error in the assessment for overvaluation and . for inequality. In their return, the commissioners presented a. statement of their, acts and proceedings, setting forth the method pursued in fixing the value of lands, including the relator’s, namely, that the appraisement thereof was made by a deputy tax commissioner, who stated under oath that, he had examined every house, building, lot, etc.,.within his distriet,. [544]*544and what amount in his judgment such property, “ under ordinary circumstances, would sell” for. The return also' refers' to the making of the annual books and the assessment rolls prepared therefrom, the entry of the relator’s lots on such books by block and lot numbers and the sums fixed upon as the value- of such lots respectively. It then sets-forth that the relator, on or about April 28,-1898, made to the commissioners an application in writing expressive of his- dissatisfaction with the.ainou.nt .of. the -assessment of his property, and asking that it be reduced, and that writing is annexed to and forms part of the return. It states, after referring to the property as vacant lots, as follows: “ He (the relator) finds that the same has been assessed on the Assessment Roll of 1898 at a valuation of $145,000, whereas the same should not have been, in his judgment, valued at more than $69,000, to be in proportion to the assessed.value of adjacent property and in accordance with the marketable value thereof.” I-t further states that “ The market value of the property has not increased since 1895, and the ability to sell the property has in fact decreased. The property was assessed for the year 1895 at $57,000, being increased to $69,000 for the year 1896. It- is vacant property, irregular in shape — and produces no income. Is rock at the curb line, covering all. He, therefore, asks that the same may be reduced to the amount stated.” the commissioners then set forth in tlieir .return that in order that no injustice should be done the relator, they directed the deputy tax commissioner to' re-examine the property and to report whether or not the alleged grievance had any substance; that, in accordance with.such direction, a re-éxamination was made by such deputy tax commissioner. On May 9, 1898, he made a written report to them in the following words: “I have re-examined the property referred to in the within application and report as follows: That the increases' made in these valuations were made to conform to the general increase made in this section, and are fully justified by the market value of the property.” Whereupon the commissioners, upon the evidence before them, “and the relator having submitted no evidence in support of his allegations, * * * determined that the assessment/as originally fixed was just, and, -therefore, confirmed it at that figure.”
. The matter was brought to- a heaving at the Special Term upon the writ, ..petition, return and schedules annexed thereto;'whereupon [545]*545the relator moved for judgment on these papers, which motion was denied. He then moved the court either to take testimony, or to order a reference of the issues raised by the petition and return. “ It appearing to the court that-testimony was not necessary for a proper disposition of the matter,” that motion was denied. Counsel to the corporation then moved to quash the writ, on the ground that it did not appear that the assessment complained of was illegal or erroneous or unequal for any reason alleged in the petition, and that motion was granted. The disposition the court made of the three several motions is contained in one order, from which the relator now appeals.
That the relator was not entitled to judgment upon the papers as presented to the court at Special Term is obvious. There was no •evidence upon which a judgment could be founded. Ñor was he entitled to a reference of the issues. He claims, in substance, that under section 253 of chapter 908 of the Laws of 1896, known as the Tax Law, it became the duty of the court to order a reference because the taking of testimony was necessary for a proper disposition of the matter. He treats the proceeding as if it were an original and independent one in which for the first time evidence in support of the relator’s claims might be offered or produced by him. Support for his contention is sought in the recent decision of this court in People ex rel. Bronx Gas Co. v. Feitner (43 App. Div. 198), in which it was held, in general effect, that in all cases of this character where an issue of fact is raised, the statute contemplates that testimony shall be taken,- and that it was never intended by the Legislature that issues raised by the petition and the return thereto, should be tried in any other way ; that the petition is in the nature of a pleading, and'that where it contains allegations of the grounds upon which the objections to the assessment are based, the terms of the statute requiring a reference, while permissive in form, are nevertheless mandatory. What was held in the Bronx Gas Company case we adhere to, but that was a case in which, as the record before the court disclosed, the relator had, in the preliminary proceedings before .the commissioners of taxes, complied with the provisions of the law which required him to put before the commissioners the full grounds of his objection to the value of his [546]*546property as fixed - by them. It was also assumed' in that case that everything had been done before the commissioners which the relator was bound to do.
By section 895 of the charter of the city of New York (Laws of 1897, chap. 378) it is provided that a person claiming to be aggrieved by the assessed valuation of real and personal estate may make application to the board.of taxes and assessments for a correction of the assessment. “ If such application be made in relation to the assessed valuation of real estate, it must be made in writing,-stating the grou-n-d.— ofnbjeetkrrTEIiereto.’’ It is true that by section 906 of the-charter it is not specifically required that in a petition for a writ of certiorari it shall be set forth in terms that the petitioner has applied to' the commissioners under section .895, but application to the tax board must precede a petition for a writ. A party who neglects to apply to the commissioners to correct an .assessed valuation cannot question it by certiorari. (People ex rel. Mutual Telegraph Co. v. Commissioners of Taxes, 99 N. Y. 254.) The return in this case shows that the relator did so apply.. His application, however, was defective and insufficient. By section 889 of the charter the deputy tax commissioners are to assess property in the several districts assigned, to them, and to state under oath the amount for which in their judgment the property under ordinary circumstances would sell. It was-not alleged by the relator in his application to the board of tax commissioners, nor shown, that his property was assessed at a greater sum than that for which under ordinary circumstances it would sell. It was merely 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, but there is nothing to show that in these years it was assessed at its then market value. As was said in the court below, the application, while generally claiming an overvaluation, omits in its specification of facts any reference to actual market value. What was . made by the relator before the .board of tax commissioners Atas merely a claim, but the grounds of the claim, the |facts relating to it, were not disclosed nor mentioned. The re-examination ordered by the commissioners was made only oh the general claim of overvaluation. Their attention was not directed to specific facts indicating that claimed overvaluation which could ha.ve [547]*547been considered and weighed had they been presented. And so with reference to alleged inequality in the assessment, nothing whatever is stated constituting inequality, but merely an expression of opinion, that in the judgment of the relator, the property should not have been valued at more than $69,000, to be in proportion to assessed valuation of adjacent property and in accordance with the marketable, value. We think it is the duty of a complaining taxpayer to do something more than make a formal complaint upon a mere technical statement before the board. We think the complaint' must be substantiated by averments or evidence tending to show, at least, that it has some support, and that it is the complainant’s duty to state the facts to the commissioners; and that, unless that is done, the complainant has not put himself, iii a position to require a court on a writ of certiorari to enter upon a new and original inquiry. The office of a writ of certiorari is to review action already taken. In order that such a review may be had, it was incumbent upon the relator, in the first instance, to set before the commissioners ‘the facts! upon which he required them to act, and which he claims show ine-f quality or overvaluation, otherwise the proceeding before them is aj merely perfunctory one, and the whole burden of revising the assessment rolls may be thrown upon the courts.
We think the court below was right in refusing to order a reference, and that the case was properly disposed of on the petition and return and its schedules, and that the writ was properly quashed.
The order appealed from must be affirmed, with costs.
Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred; Barrett, J., dissented.