#### PEOPLE ex rel. DWIGHT v. PLATT et al., Assessors.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Taxation—Refusal to Reduce Assessment—Cebtioeabl

Under Laws 1857, c. 176, § 6, as amended by Laws 1857, c. 536, providing that, if any person examined by the assessors refuse to answer any question as to the value of his personal property, the assessors shall not reduce the assessment of his personalty, the refusal to answer such questions does not prevent the court, on certiorari to review the refusal of the assessors to reduce the assessment, from ordering a reference to take • evidence, where the decision of the assessors was not based on the person’s refusal to answer the questions.

2. Appeal—Objections not Raised Below.

On appeal from an order of the special term ordering a reference to take evidence, on certiorari to review the refusal of assessors to reduce an assessment, an objection that the reference was erroneous because the taxpayer’s refusal to answer questions as to the value of his property authorized the decision of the assessors cannot be raised for the first time.

Appeal from special term.

Certiorari by Mary B. Ó. Dwight to review the determination of Benjamin S. Platt and others, assessors of the village of Clinton, assessing the property of relator for taxation. From an order appointing a referee to take evidence, defendants appeal.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

C. D. & Seth C. Adams, for appellants.

Jones & Townsend, for respondent.

*532PER CURIAM.

On the 23d day of May, 1895, a writ of certiorari was issued out of the supreme court, under the provisions of chapter 269 of the Laws of 1880, to review the assessment of the respondent made by the appellants, as assessors of the village of Clinton, N. Y. They assessed the relator $50,000 for personal property. Upon “grievance day” the respondent appeared before the assessors, made complaint that she had no personal property which was subject to taxation, and asked that the assessment should be stricken from the roll. She was thereupon sworn and examined by them, and testified that she had no personal property which was subject to taxation, and stated what property she had, in what it was invested, and the amount of debts she owed. During such examination, after having testified that since last year she had bought United States bonds, she was asked, “How many U. S. bonds, and to what amount, did you buy, as you say?” This question she refused to answer. She was further examined by the assessors, who, at the completion of such examination, indorsed upon the complaint and examination their disagreement, as required by statute, and refused to strike her assessment from the roll. The appellants made return to the writ, setting forth the respondent’s complaint and examination, and the proceedings had by and which took place before them in regard to such assessment, which concluded with the statement that after considering the whole matter, and taking into account their personal knowledge and the knowledge they had acquired by diligent inquiry, they believed and decided that the relator was a taxable inhabitant of the village when the assessment was made, and was the owner of $50,000 personal property then taxable in said village, and therefore they refused to strike her name from the assessment roll. Upon filing such return the special term made an order appointing Walter Ballou, Esq., referee to take evidence relating to the matters set forth in the petition of the respondent and the return of the appellants thereto, and to report the same to the court, with his opinion thereon. From that order the appellants appeal.

Chapter 269, Laws 1880, provides that a writ of certiorari may be allowed to review an assessment when the petition shall sét forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal. It was stated in the petition in this case that the assessment of the respondent was illegal, erroneous, and void, upon the ground that the petitioner was not then, and had not been at any time during the year 1895, the owner of any personal property in the village ot Clinton which was the subject of taxation. Section 4 of the act of 1880 provides that if it shall appear by the return that the assessment complained of is illegal, erroneous, or unéqual, for any of the reasons alleged in the petition, the court shall have power to strike such assessment from the roll, if illegal, or, if erroneous or unequal, to order a reassessment. It then provides:

> “If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may. direct, and report the *533same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.”

The single question presented upon this appeal is whether the special term, was authorized, under this provision of the statute, to appoint a referee to take proof in the matter, and report the same to the court. The issue made by the petition and return was whether the respondent had personal property to the amount of $50,000, in the village of Clinton, which was the subject of taxation. That, under the provisions of section 4 of the statute of 1880, the special term was authorized to order a reference in this case, we have no doubt, unless the respondent is prevented from reviewing the action of the assessors by reason of her refusal to answer the question asked by them as to how many, and what amount of, United States bonds she purchased. Section 6 of chapter 176 of the Laws of 1851, as amended by chapter 536 of the Laws of 1857, provides that if the person examined by the assessors shall refuse to answer any question as to the value of his real or personal estate, or the amount thereof, the assessors shall not reduce the value of such real or personal estate. An examination of the appeal book discloses that the appellants did not refuse to reduce the respondent’s assessment because of her refusal to answer the question propounded by them, but, after a full consideration of the matter, they decided that the relator was a taxable inhabitant of the village of Clinton, and the owner of personal property to the amount for which she was assessed; and it was for that reason they refused to strike her name from the assessment roll, or reduce the amount of her assessment. Upon the issue as to whether the respondent was the owner of $50,000 of personal property which was subject to taxation, we think the court had authority to appoint a referee to take evidence, and report the same to the court. People v. Coleman (Sup.) 13ST. Y. Supp. 112. Moreover, the record fails to disclose that the appellants at special term made any objection to the granting of the order of reference upon the ground that the respondent had refused to answer the question she had been asked by the appellants. Under such circumstances, we think that the respondent’s refusal to answer is not available on this appeal. People v. Hicks, 40 Hun, 598. In the case of People v. Palmer, 86 Hun, 513, 33 N. Y. Supp. 926, where it appeared that the relator was present before the assessors, and refused to answer pertinent questions propounded to him by them, a reference was ordered; and it was held that the return of the assessors was not conclusive, but that the court might consider the evidence offered by the relator, as well as that offered by the respondents. In People v. Smith, 24 Hun, 66, it was held that the return was open to contradiction, and that the court might appoint a referee to take and report the evidence produced by the parties. In People v. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, it was said that the return to a certiorari under the act of 1880 was not conclusive, but that the object of the act was to have a review, and that, too, on further evidence, if necessary. In view of these authorities, it is difficult to perceive how this court can hold that it is conclusively established that the relator refused to answer any pertinent or competent question as to the value *534of her property, or the amount thereof. Upon a trial before the referee, she may deny that there was any such refusal, and, by competent and sufficient proof, satisfy the special term that there was not. In that event, she would clearly be entitled to give such additional proof upon the question as to whether she had personal property to the amount for which she was assessed as she might be able to furnish.

Whether the question propounded to the respondent was or not material, we need not decide. The appellants’ contention that it was material and pertinent, because she was taxable, on the value of the United States bonds held by her, so far as their value was above par, cannot, we think, be sustained. It is true, it was intimated by the court in People ex rel. Manhattan Fire Ins. Co. v. Commissioners of Taxes, etc., in City of New York, 76 N. Y. 64, that bonds were exempt only to the extent of their par value, instead of their market value; but in People ex rel. Leonard v. Commissioners of Taxes, etc., in City of New York, 90 N. Y. 63, that question was more carefully examined, and the court held that the fact that United States bonds were above par in the market did not render the owner liable to assessment and taxation on the excess, and that the exemption was not limited to par value, but applied to the entire value of the bonds. In referring to the case in 76 N. Y., the court, in effect, said that the question was of minor importance in that case, and not much considered, but that upon a fuller consideration of it they were constrained to hold that the exemption applied to the entire value. These considerations lead to the conclusion that the order appealed from should be affirmed.

■ Order affirmed, with $10 costs and disbursements.