#### The People ex rel. Henry B. Swartwout, Relator, *v.*The Village of Port Jervis et al., Respondents.

(Supreme Court, Orange Special Term,

April, 1898.)

I. Municipal corporations — Village trustees cannot add a new name to an assessment-roll on grievance day — Waiver.

Under a village charter providing for the preparation, in the first instance, by the town clerk of an assessment-roll and for its subsequent correction by the board of trustees, under powers similar to those enjoyed by boards of supervisors, the trustees have no power, upon grievance day, to enter upon the roll an assessment for personal property against a person whose name was not then on it but who, having heard that he was to be ¡assessed, voluntarily appeared before the trustees and submitted to an examination relative to- his personal property.

0. Certiorari to review an assessment — Failure to give notice of the completion of the roll leaves unlimited. the time within which the writ may be sought.

Where no notice of the final completion of an assessment roll has been given as required by the Tax Law (Laws of 1896, chap. 908, § 38), the time within which an application for a writ of *certiorari*to review the determination, may be made has not been limited.

Certiorari to ¡review an assessment of personal property.

R. Ed. Schofield *&*Wm. A. Parshall, for relator.

John W. Lyon, for respondents.

Hirschberg, J.

The present village .charter was passed. May II, 1898. • It abolished' the office of assessors and charged the clerk with the duty of preparing the (assessment-roll in the first instance so far as possible *“*from the last preceding assessment-roll of the town of Deer Park after its final revision by the town assessors, following said town assessment-roll as to- valuation of taxable property; ” and it charged the board of trustees with' the duty of correcting and finally completing the roll so made by the clerk. The board is vested with power to make such corrections “ in the same manner as boards of supervisors may by law correct *318the town rolls of their county.” The hoard is also vested with power to add to said assessment-roll, any property improperly omitted therefrom, at a just and equitable valuation, and where the valuation of any taxable property cannot be ascertained from the last assessment-roll of the town, or where such valuation has increased or diminished since such assessment, or any error, mistake Or omission shall have been made by the town assessors in a description or valuation of taxable property, “ the trustees shall ascertain the true value of the property to be taxed.from the best evidence in their power, give notice to the' persons interested and proceed in the same manner as the. town assessors are required by law to proceed in the valuation of taxable property, and hearing all grievances and a revision of the town assessment-roll.”

In accordance with these provisions the town clerk prepared the assessment-roll for 1896, and notice was given that the board of trustees would revise and correct it on the 16th day of June, .1896. It did not contain any assessment against the relator, for personal - property. He heard, however, that the board intended to assess him for bank stock held by him and he appeared before them , on the 16 th to protest against such assessment. On that day he made affidavit and submitted to an oral examination under oath, swearing to existing indebtedness in excess of his personal estate, and not created for .the purpose of. avoiding taxation. ' The board then had in its possession lists of the stockholders in the local banks, and by resolution such lists were then annexed to the assessment-roll, and thereafter such roll was altered and completed by inserting opposite the relator’s name the assessment complained of for personal property.

It seems clear that this assessment was unlawful. ■ After the roll is completed and notice given that grievances will he heard on a day stated, the roll can only be altered by the correction of errors, while changes in the persons or property assessed or the adjudged valuations can only be made upon the complaint of the party aggrieved. People ex rel. Chamberlain v. Forrest, 96 N. Y. 544. The relator finding no assessment against him for personal property might well have remained away on grievance day and no assessment could lawfully have been made against him on that day. His voluntary attendance to protest did not waive the immunity nor confer jurisdiction upon the board. The lists of stockholders did not constitute any part of the assessment-roll, and in this respect the case is clearly distinguishable from People ex rel. D., L. & W. *319R. R. Co. v. Clapp, 64 Hun, 547, cited by the respondents’ counsel. In that case the roll was in separate sheets, but in legal form, and those sheets when afterwards bound together comprised the completed roll. In this case the lists formed no part of the final roll, but merely furnished information to the board as a basis for new' and additional assessments which were afterwards incorporated in the roll. The difference is vital and fatal.

The application for the writ of *certiorari*was timely. The papers do not show that the notice of final completion of the.roll■ was given as required by section 38 of the Tax Law (chap. 908 of the Laws of 1896, taking effect June 15, 1896), and the time for the application for the writ is accordingly unlimited. People ex rel. R., W. & O. R. R. Co. v. Haupt, 104 N. Y. 377, and Matter of Corwin, 135 id. 245.

In making this decision I do not wish to be understood as assenting to the proposition of relator’s counsel that the town clerk may not ia¿Ld persons and property not on the preceding roll or that the board may not upon due notice make like additions. The decision goes no further than a denial of the power of the board to make additional assessments on grievance day without notice.

Judgment is ordered in favor of the relator, without costs.

Judgment for relator, without costs.