#### In re WINEGARD.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

t. Taxation—Certiorari to Review Assessment—Return.

Under laws 1880, c. 269, § 3, providing that on certiorari to review a tax assessment the assessors may return copies of the assessment roll, a writ of certiorari is not invalid because it directs the assessors to return the original role after it had been deposited with the town clerk. 25 N. Y. Supp. 48, affirmed.

2. Same—Parties—Town Clerk.

The town clerk, in whose office the assessment roll is deposited, need ■ not be made a party to such proceeding, as the writ is satisfied by the return of a copy of the roll. 25 N. Y. Supp. 48, affirmed.

8. Same—Objections not Raised on Grievance Day.

Where the only objection to an assessment made on “grievance day” was that relator had no personal property subject to assessment, the objection that the assessment is unequal cannot be raised on certiorari to review it.

Appeal from special term, Schoharie county.

Application by Elizabeth Winegard for writ of certiorari to review a tax assessment made by Jedediah Hynds, Charles Kromer, and Peter A. Strail, assessors of the town of Seward. The writ was granted, and defendants’ motion to set aside and vacate the same was denied (25 IN'. Y. Supp. 48), and defendants appeal. Modified.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

W. C. Lamont, for appellants.

J. B. Holmes, for respondent.

PUTNAM, J.

This is an appeal from an order denying defendants’ motion to set aside a writ of certiorari granted in this proceeding. Petitioner, a resident of the town of Seward, NT. Y., on the 16th day of August, 1892, appeared before the board of assessors of said town, and asked that an assessment against her of $5,000 on personal property be stricken from the assessment roll on the ground that she had no personal property liable to be assessed. The learned counsellor for the appellants suggests that the writ sought to be vacated was not authorized by section 3' of chapter 269 of the Laws of 1880, as it directed the return of the original assessment roll and papers, which, prior to the making of the order for the issuance of said writ, had been filed with the town clerk of said town, We are of opinion that this position is not well taken. It was immaterial whether the writ commanded the assessors to return the original assessment roll and papers or copies thereof, inasmuch as in either case, under section 3 of the act referred to, a return of copies of said papers would constitute a compliance with the provisions of such order. Under the said section a direction of a court to the assessors to return the assessment roll and other papers should be deemed to mean the said assessment roll and papers or copies thereof. Hence, under the order or writ sought to be vacated, had the assessors returned copies of the papers mentioned in said order, they would, under the statute, *1040have obeyed the mandate oí the court. It is also claimed that the town clerk should have been made a party to the proceeding, as the original assessment roll and papers in question were, when the ordér was granted, in his possession. Inasmuch, however, as the assessors were only compelled to return copies of the papers in possession of the town clerk, we are unable to see the necessity of making that officer a party to the proceeding. That it is not necessary, in such a case, to make the town clerk a party, has been decided in People v. Putnam, 9 N. Y. St. Rep. 469. We concur in the views stated in the opinion of Haight, J., in that case.

Appellants also contend that the writ improperly directed the assessors to make return as to the matters not raised before them on “grievance day,” viz.: It commanded them to return “a statement of the value of the real estate assessed on said roll, the total asséssed value thereof, the total assessed value of the personal property assessed on the roll; and also' to return whether or not the real or personal property, or either, appearing on said roll was assessed at its full and true value, at which it would be appraised in payment of a just debt due from a solvent debtor, or at a percentage of such value; and, if at a percentage, the rate per cent, that the real and personal were assessed of their true value.” Thus bringing up for review the question whether the assessment against petitioner was unequal, although such claim was not made by her before the assessors on “grievance day,” the only claim then being made that she had no personal property subject to taxation. We are of opinion-that the original order should have only directed a return by the assessors of papers and facts necessary to enable the court to review the decision of the assessors on questions raised before them at the time appointed for hearing parties claiming themselves aggrieved. It has been held that chapter 269 of the Laws of 1880, giving a remedy by certiorari to correct an illegal or excessive assessment, does not apply to a complaining party who has omitted to avail himself of the opportunity provided by statute to remedy his grievance. People v. Tax Com’rs, 99 N. Y. 254, 1 N. E. 773; People v. Adams, 125 N. Y. 471-484, 26 N. E. 746; People v. Assessors of City of Middletown (Sup.) 19 N. Y. Supp. 142. The relator in this case appeared before the town assessors on “grievance day,” and objected to the assessmént on the sole ground that she had no personal property subject to assessment. She made no complaint on the ground that the assessment was unequal, or otherwise unauthorized. Can she now raise questions which she did not attempt to raise before the assessors? We think not. The certiorari authorized by chapter 269, Laws 1880, provides a mode of reviewing the action of the assessors. It was intended to authorize the court to review the decision of the assessors, but, as the authorities above cited show, only such decisions as are made on “grievance day.” Objections not raised before the assessors on that day cannot be deemed passed upon by them, and hence cannot be considered on certiorari. The proceeding before the assessors on the day appointed for hearing grievances may be deemed a species of trial. The party- complaining states his case *1041and offers Ms evidence, and the assessors pass on the questions raised by his objections; and that decision, whichever way it is, the complaining party may review by certiorari. If one objecting to an assessment must appear before the assessors on the day appointed for' him to state his grievances, it follow's that he should then state all the objections he desired to make, and obtain the decision of the assessors thereon. If a party, having several complaints to an assessment, omits to state but one of them to the assessors, he fails to obtain their decision as to the objections not stated, and cannot raise such objections for the first time on certiorari. Complaints not made-before the assessors on “grievance day” should be deemed waived. In Hilton v. Fonda, 66 N. Y. 340, the assessors were sued for assessing certain real estate of the plaintiff, a nonresident, to him personally, instead of assessing it as nonresident real estate, and thus acting without jurisdiction. Plaintiff’s agent had appeared before the assessors, and objected to the amount of the assessment, but not that it was illegally assessed to the plaintiff personally. It was held that the petitioner’s objection to the jurisdiction of the assessors was waived. So, here, we think, the objection that the tax was unequal,, not having been taken by the relator before the assessor, must be deemed waived. The petition on which the order for the writ was granted showed that the only grievance stated by the relator to the appellants on “grievance day” was that she had no personal property liable to taxation. It has been held that a writ of certiorari issued under chapter 269 of the Laws of 1880 may be amended. People v. Cook, 62 Hun, 303,17 N. Y. Supp. 546; People v. Assessors of Town of Herkimer, 6 Civ. Proc. R. 297. For the reasons stated we think that the writ should not have directed the appellants to make in their return a “statement of the Aralue of the real estate assessed on said roll, the total assessed value thereof, the total assessed value of the personal property assessed on the roll, and also to return whether or not the real and personal property, or either, appearing on said roll, was assessed at its full and true value, at which it would be appraised in payment for a just debt due from a solvent debtor, or at a percentage of such value, and, if at a percentage, the rate per cent, that the real and personal were assessed of their true value.” This clause was probably inadvertently inserted in the order. The order from which the appeal is taken should be modified so as to direct the original order and writ to be modified by striking out the clause above quoted, and, as so modified, affirmed, without costs to either party in this court or in the court below.

HERRICK, J., concurs. MAYHAM, P. not