#### People *ex rel.*Niagara Falls Hydraulic Power & Manuf’g Co. *v.*Russell *et al.*

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

Taxation—Excessive Assessment—Remedies—Costs.

In a proceeding under Laws N. Y. 18S0, c. 269, to rdduce an excessive and unequal assessment, the relator, on appeal by *certiorari,*cannot, under section 6 of that act, recover costs against the assessors unless it is shown that they acted with gross negligence, or in had faith.

Appeal from special term, Niagara county.

A proceeding under Laws N. Y. 1880, c. 269, to reduce an excessive and unequal assessment. Appeal by defendants, the assessors, from that portion of the order awarding costs to the relator.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*W. Caryl My,*for appellant. *Charles H. Piper, Sr.,*for respondent.

Macomber, J.

The defendants are the assessors of the village of Niagara Falls. In making up the assessment roll in the year 1887, they placed certain lands owned by the relator upon the roil at the valuation of $23,200. The relator claimed such valuation to be excessive, unequal, and not proportionate to the value of other real estate in that village. Upon the day set for hearing grievances, the relator duly appeared, and was heard; and a slight reduction was made, but not enough to satisfy his demands. A writ of *eertio*
      *392
      *rari*under the statute was duly issued; and upon the return thereto, and upon the evidence subsequently taken, it was decided by the special term that the assessment should be reduced to the sum of $18,560, making a reduction of $4,640.

The tax upon this excessive valuation, namely, $14.37; having been paid by the relator, was properly directed by the court to be audited and allowed by the assessors in the next annual tax-levy of the village of Niagara Falls. Section 8, c. 269, of the Laws of 1880, as amended by chapter 342 of the Laws of 1887. Without such direction by the court, it would have been the duty of the assessors so to enter the same, in order to reimburse the plaintiff for an unlawful payment exacted of him. The provision for the allowance or withholding of costs in this proceeding is found in section 6, e. 269, of the Laws of 1880, which is as follows: “Costs shall not be allowed against assessors, or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith, or with malice. If the writ shall be quashed, or the prayer of the petitioner denied, costs shall be awarded against the petitioner; but the costs shall not in any case exceed the costs and disbursements taxable in an action upon the trial of an issue of fact in the supreme court.” The rule governing costs in *certiorari*proceedings generally (section 2143 of the Code of Civil Procedure) has no application to this proceeding. *People*v. Coleman, 18 Abb. N. C. 246. In the absence of a holding by the special term or by this court that the action of the assessors was grossly negligent or in bad faith or with malice, no costs under this statute can be permitted against them. *People*v. *Peterson,*31 Hun, 421; *People*v. *Pond,*13 Abb. N. C. 1.

The learned justice presiding at special term has, in his opinion, fully and completely exculpated these assessors from any negligence, bad faith, or malice. He has written an opinion to the effect that they acted honestly and intelligently, and committed only an error of judgment such as any honest person is liable to fall into. The costs of the relator have, as it has been stated above, under these circumstances, been admitted to be saved to him, although clearly enough, under the statute, and under the decisions cited, they could not be recovered from these defendants. This has been done by a direction in this proceeding to the assessors to levy the same in the next tax-levy, and to pay the same over to the relator. We are unable to find any statutory or other authority for this part of the order appealed from. The costs amount to $180.14, while the reduction of the tax is only $14.27. Yet there is no provision of the law by which the relator can be permitted to recover such costs except in the cases where it is shown that the assessors have acted with gross negligence or bad faith or maliciously. The persons upon whom these costs are directed to be levied were not parties to this proceeding, nor was the village of Niagara Falls a party thereto. Under the statute the controversy is solely between the aggrieved tax-payer and the assessors. In the absence of a statutory provision by which these costs may be collected in the way prescribed by this order, the direction to the assessors contained in this order must be deemed to be erroneous. The examination of the evidence leads us to the same conclusion reached by the special term, that the assessors acted fairly and honestly; otherwise, upon their appeal, we might probably modify the order, and charge the costs directly upon them, personally. The order appealed from should be reversed, but, under the circumstances, without costs.

All concur.