The People, ex rel. Peter Lorillard, vs. The Supervisors of the County of Westchester; The People, ex rel. John David Wolfe, vs. The same Defendants, 15 Barb. 607

S. B. Strong, J.

The relators set forth in their respective1 writs of alternative mandamus that they have severally been1 unjustly assessed in specified amounts, Both individually and as trustees or executors, and that the defendants have refused to correct the assessments ; and the writs require the defendants to correct the assessments, or,.if the same shall not he corrected, to- cause the' amounts erroneously assessed to Be levied and coblected from the town and county of Westchester) orto show cause why they cannot or will not “ do the same.” The defendants have in their' answers stated why they could not or would not correct the assessments, or cause the amounts for which the defendants were as they alleged erroneously assessed (taxed) to he levied upon or collected from, the town and county.

The relators, deeming the reasons assigned by the defendants to be insufficient, have each interposed a demurrer. It was decided by the late court for the correction of errors that the relator must set forth in the alternative mandamus the facts upon which he relies for the relief sought) so that the facts alleged may be admitted or traversed, and that the defendant may, at any time after a return and before a peremptory mandamus is awarded, object a want of sufficient title in the relator to the relief sought, or show any other defect in substance. (The Commercial Bank of Albany v.

The Canal Commissioners, 10 Wend. 25.) The same rule was laid down and formed the basis of the decision in a late case in the court of appeals. (The People v. Ransom, 2 Comst. 490.) The code has no reference to writs of mandamus, and therefore the same principle is still applicable. It is also settled that the relator can obtain only the relief which is demanded in the alternative writ, or, possibly, some part of it. (The People v. The Supervisors of Dutchess County, 1 Hill, 50. The People v.

The Board of Supervisors of Westchester County, 12 Barb. 446.) In the cases under consideration the only allegations upon which the relators call for relief, are that they have been unjustly assessed, and that the defendants have refused to' correct the erroneous assessments, blow a general assertion that injustice has been done to the* relators, in assessing their property,is not sufficient to entitle them to any relief.

They should have gone beyond that, and stated the particulars, in order that it might be seen from them that the charge was well founded, and that the defendants might be enabled specifically to answer the complaint. The words unjust and wrongful may be very proper to qualify facts stated, but they cannot supply their place. The pleader probably supposed that the writs might be supported by the papers on Which they were granted, and which are copied in the demurrer books. But that is not the rule, The writs do not refer to those papers, nor state their substance.

In the case which I have cited from the 10th Wendell, the chancellor (Walworth) says: “ On a careful examination I am satisfied that these affidavits [on Which the writ was granted] formed no part of the record, and could not legally have been taken into consideration by the supreme co.urt, in deciding the demurrer to the return of the defendants to the peremptory mandamus.” In the case of The People v. Ransom, which I have before cited, it was said by the judge who gave the opinion of the court that “ it is not ordinarily necessary in pleading to set out copies of the requisite papers.

All that is required is that a pleading should state enough to show that the papers on which the pleader relifes, are such as, in a case like the present, the statute requires.” But if these papers could be considered, as a part of the writs, or at all, they would not show that the relators are entitled to any relief. It is not now pretended that the relators were not taxable in the town of Westchester. The assessors of that town had therefore the requisite jurisdiction. The complaint presented by the affidavits is that the personal property of the relators, liable to assessment, was overrated.

That, if true, was a wrong for which the statute supplies an adeqtiate remedy. The assessors are required to deposit a fair copy of the assessment roll with one of their number, and to give timely public notice that they have done so, and that they will meet at a specified time and place to review their assessments.

At such meeting it is competent for any person complaining to present his own affidavit, stating the value of his property liable to taxation, or to adduce other satisfactory proof of such value, and then the assessors are bound to reduce the assessment to the amount specified in the affidavit, or established satisfactorily by other evidence. (1 R. iS. 392, 3, 4.) In the cases under consideration, the assessment roll was duly deposited and the requisite notice was given.

The relators did not produce any affidavit, or offer any proof, showing that their property had been over-estimated, a.t the time and place specified in the notice. The assessors supposed that they were not authorized to receive such affidavit or proof afterwards, and before they had delivered their roll to the supervisor. In this I think they erred.

There is nothing in the statute restricting their action in this respect, to the time and place mentioned in the notice; and it seems to me that their general power to make the assessment, involves the right to correct it, (except possibly to increase the estimate of the property of any one after the roll has been deposited with one of them, for the purpose of inspection, which would then be manifestly unjust,) at any time before their roll is delivered to the supervisor.

The relators did submit affidavits, after the time limited in the notice, but the difficulty in their way is that those papers were not such as the statute requires. The 25th

section provides that the affidavits shall be made before the assessors, or one of them; whereas those presented by the relators were sworn to before a justice of the peace. The statute conferring upon justices of the peace the authority to administer oaths expressly excepts “ such as are required by law to be taken before particular officers.” (2 R. S. 284, § 49. Blatchford’s General Stat. of N. Y. 490.) The affidavits differ, too, in some material matters, from the requirements of the statute. (1 R. S. 392, § 15.) Mr.

Lorillard swears that his personal property, liable to taxation by the laws of this state, does not exceed the sum of four hundred and fifty thousand dollars, after payment of his just debts and liabilities, to the best of his belief. Mr. Wolfe deposes that the personal estate owned by him and liable to taxation under the laws of this state, does not exceed the'sum of two hundred thousand dollars, according to the best of his knowledge and belief.

The statute, in force at the time provided that the applicant for a reduction of the assessed valuation of his personal estate should make affidavit that the value of the personal estate owned by him, after deducting his just debts and his property invested in the stock of incorporated companies liable under the same

chapter to taxation on their capital, did not exceed a certain sum to be specified in the affidavit. The statute does not sanction a statement upon belief; but in effect requires the applicant to fix upon a sum from his knowledge of his own circumstances which he can conscientiously swear, in positive terms, is the utmost extent of his personal estate liable to taxation. The statute requires the applicant to swear that the value of his entire personal estate, after certain deductions, does not exceed the specified amount.

But in the cases under consideration each swears as to the value of his personal estate, liable to taxation under the laws of this state; thus making himself the judge of what is so liable. As to that, there is room for mistake; whereas there is much more certainty as to the entire value and the amount of specified deductions. Mr. Wolfe does not particularize any deductions, but Mr. Lorillard mentions debts and liabilities. Debts are mentioned in the statute, but liabilities are not. They may be much more extensive' than the just debts. The affidavits presented by the relators as trustees are equally defective.

The 16th

section of the act requires that when a trustee applies for a reduction he shall specify by affidavit the value of the property possessed by him, or under his control, by virtue of the trust, after deducting the just debts due from him and the stock held by him in incorporated companies liable to taxation in that capacity. (1 M, 8. 392.) Mr, Lorillard merely states the value of each of the estates specified in the

schedule annexed to his affidavit, and swears that the statements are just and true, according to the best of his knowledge and belief. And Mr. Wolfe swears that he is a co-trustee in different estates in which Mr. Lorillard is the acting trustee; and that is all, Ho doubt these gentlemen have acted conscientiously in presenting these affidavits, and if they had prevailed, the public would not have suffered by their omission to comply substantially with the requisitions of the statute.

But if the noncompliance should be tolerated in these instances the rule must be general, and many cases might and probably would occur where it might operate more unjustly. It is better to require a full compliance (at least in substance) with statutory provisions, and particularly when they are of extensive application, and relate to the acts of inferior officers. Injustice may be done, occasionally, by a uniform adherence to the rule, but much more would be caused by its practical abrogation. Clearly it was not Compulsory upon the assessors, under the circumstances, to reduce the assessments.

They had at least a discretion on the subject, and with the exercise and result of that discretion this court ought not to interfere. Public policy forbids it. .

This court is intrusted with the power of the court of king’s bench in England, in granting writs of mandamus ; and as to that court it is laid down that it is not obliged to issue the writ in all cases when it has the requisite power, but herein may exercise a discretionary power as well in refusing as in granting it; as where the end of it is merely to try a private right, where the granting of it would be attended with manifest hardships and difficulties. (Jac.

Law Dic. tit. “Mandamus”) But if the relators have sustained a wrong for which they might be entitled to some remedy, the difficulties in the way of their obtaining the relief demanded by them appear to me to be insuperable. They ask that the assessment may be corrected by the supervisors, or that they direct the amount of the erroneous tax to be levied and collected from the town and county of Westchester.

The assessment roll was delivered to the board of supervisors at their annual meeting, on the first Tuesday in November, 1849, was finally acted upon by them at that time, and a warrant was at the same time issued by them to the collector of the town of Westchester, to which a copy of the assessment roll was annexed, commanding him to collect the taxes apportioned according to such roll. The petition for the writs was verified on the 17th day of December following. The assessment roll had then passed from the jurisdiction of the supervisors.

They had not then (if they ever had, in the particulars mentioned by the relators,) the power to correct it. Their powers are prescribed by the statute, and as they constitute a body of limited jurisdiction, they cannot go beyond the statutory bounds. The rule is well settled that a mandamus will not be granted where it would be unavailable, from a want of power in the defendants to perform the required duty. (The People v. The Supervisors of Greene County, 12 Barb. 217.) [Westchester Special Term, September 24, 1853. S. B.

Strong, Justice.] There is no ground for requiring the defendants to cause the amount of the tax erroneously imposed to be levied and collected from the town and county of Westchester, as it is not alleged, nor does it appear that the taxes had been paid by the relators, When the writs were allowed, but on the contrary the petitions on which the writs were issued ask that the collector of the town may be restrained from collecting those taxes.

Another difficulty is that a portion of the taxes would, if paid, have gone into the treasury of the state, and as to that there could be no obligation upon the county or town to refund the amount. There must be judgment for the defendants in each of these cases. But as there can be no doubt that the relators have been excessively taxed, and as the county of Westchester has to a considerable extent received the avails, I shall not award any costs to the defendants.