In a certiorari proceeding under the Tax Law, the Supreme Court has reduced an assessment of the relator's real property in the city of Olean from $24,800 to $20,400. The final order to this effect has been unanimously affirmed by the Appellate Division. The assessment was found to be unequal as compared with the other assessments generally on the same roll and to have been made at a higher proportionate valuation than other assessments of similar property by the same assessors. This finding is conclusive upon us unless some substantial error is disclosed by the record.
The higher proportionate valuation of the relator's property was proved by comparing its value with that of other *Page 516 pieces of property in the neighborhood of the same general class and character. According to the opinion of the learned judge at Special Term the relator presented to the assessors on grievance day proof of the respective values of twenty seven properties that were assessed at from 50% to 83% of their values, the average being 67%; and by an order made at the hearing on the writ of certiorari the number of properties to be selected for the purpose of comparison was limited to ten. The record would be more satisfactory if it contained more evidence than it does as to the substantial similarity between the improvements on the parcels thus used for comparison and those upon the lands of the relator. I find only one objection and exception, however, on this ground, and that relates to a single piece of property known as the Samuel Pancoast Estate. As to the other pieces there seems really to have been no dispute as to their suitability for purpose of comparison, and the appellants can hardly rely on any alleged error in this respect inasmuch as they argue no such point in their brief. Furthermore, I think that in the absence of contradiction the proof of substantial similarity was sufficient.
The court at Special Term held that these ten properties had been assessed on an average at only 75% of their respective values while the relator's property had been assessed at more than 100%. The relator's property is a triangular lot having a frontage of 240 feet on Laurens street and 305 feet on First and Second streets. Upon it there is a large frame dwelling facing Laurens street, and there is also a frame barn in the rear corner of the lot near Second street. The property has heretofore been used solely for residential purposes and has never been subdivided into lots. The assessors, however, treated it as capable of being thus subdivided into a number of building lots and estimated that if this were done the frontage of 240 feet on Laurens street would be worth $42 a front foot, 155 feet on First street $35 a front foot *Page 517 and 150 feet on Second street $40 a front foot, making a total of $21,330 for the land. They assessed the value of the dwelling house and barn at $3,470; aggregating $24,800 for the whole property.
The learned judge at Special Term thought that the course pursued by the assessors involved considerations which were essentially speculative in character, depending upon conditions that might or might not exist; and he declared that he would be unwarranted in accepting the testimony of real estate agents who based their opinion evidence as to values upon the conjectured outcome of a proposed venture in subdividing the property and offering it for sale in lots. The true rule applicable to property situated like that of the relator was correctly stated by Mr. Justice CULLEN in Matter of Daly v. Smith (18 App. Div. 194,197) where he said: "It is doubtless true, and settled by authority, that the landowner is not limited in compensation to the use which he makes of his property, but is entitled to receive its greatest value for any purpose. But still it is the market value of the property that is the measure of the compensation. When, therefore, it is sought to show that a tract of land has a use for a particular purpose, it must also be shown that it is marketable for that purpose, or has an intrinsic value. * * * Nearly any tract of land or any farm can be cut up into lots or villa sites. The question is not whether it can be so subdivided, but whether purchasers for the lots can be found, and also how speedily found. For if only small parts can be sold at intervals, and a number of years must elapse before the whole property can be disposed of, it is apparent that it would be unfair to take as a present value of the property a sum only to be realized after a long lapse of time." The propriety of pursuing the course adopted by the assessors in the present case, therefore, depended upon the question whether the relator's property was presently marketable if subdivided according to their assumption. That question, however, is not particularly important *Page 518 upon this appeal as it was considered by the court only in estimating the weight to be given to certain testimony, and not at all upon the main issues in the proceeding.
For the purpose of establishing the higher proportionate valuation of the relator's property as compared to the ten other selected pieces witnesses called in her behalf valued her property as a whole; and the defendants contend that it was error to permit this to be done inasmuch as such proof was not a proper basis upon which to compare the assessment. The relator's son was asked what was the fair market value of the property occupied by his mother in August, 1913, at the corner of First, Second and Laurens streets. This was objected to as incompetent and immaterial, and "not a proper rule upon which to compare this assessment;" the objection was overruled and counsel for the defendants excepted. Counsel for the defendants then said: "Let us stipulate that all of the evidence as to the actual value shall be received under the same objection and exception." To this the court responded, "Yes."
It is contended that this objection, exception and stipulation sufficed to raise two questions of law upon this appeal: (1) Is it competent in a certiorari proceeding under the Tax Law for the purpose of showing inequality in valuation to compare the gross assessment of the relator's property with the gross assessment of other similar properties on the assessment roll? and (2) Is the sole comparison permissible in such a proceeding for such purpose a comparison between a valuation of the land made by the assessors and the values of other similar lands, and the valuation of the building made by the assessors and the values of other similar buildings?
In behalf of the appellants it is argued that the second method of comparison is the only one which can be permitted under section 21a of the Tax Law (Cons. Laws, ch. 60) which was added to that statute by amendment *Page 519 in 1911 (Laws of 1911, ch. 117). That section provided as follows:
"§ 21-a. Assessment-rolls in cities. In all cities there shall be an additional column in the assessment-roll before the column in which is set down the value of real property, and in such additional column there shall be set down the value of the land exclusive of buildings thereon. The total assessment only can be reviewed."
Here we have, first, a direction to the assessors, and,second, a direction to the court which may review their determination.
The only difficulty in construing this amendatory section to the Tax Law is due to the final sentence; but I think its meaning is tolerably plain. In my opinion it is merely a prohibition against an attempt to review the assessed value of the land exclusive of the buildings thereon separately from the value of the entire real property which is the subject of assessment — that is to say, the land and the buildings thereon. Thus construed it is not at variance with the previous provisions of the enactment.
We are not concerned on this appeal with the direction to the assessors contained in section 21-a of the Tax Law for it is not contended that they disregarded its provisions in any respect. The fault which the Supreme Court found with their action as evidenced by the findings at Special Term was that the assessment of the relator's property was unequal as compared with the other assessments generally on the same roll and was made at a higher proportionate valuation than other assessments of similar properties on the same roll by the same assessors. For this reason the assessment was reduced as already stated.
The principal grievance asserted by the appellants is that the court at Special Term in thus reducing the assessment acted upon evidence as to the value of the land and buildings as a whole. I can find nothing in the Tax Law which would warrant us in holding that it *Page 520 in receiving such evidence. That statute requires the assessors in preparing the assessment roll to place in the second column the quantity of real property taxable to each person. (Tax Law, §21, subd. 2.) The amendment of 1911 (§ 21-a) provides for an additional column in cities in which shall be set down the value of the land exclusive of the buildings thereon. Here we find provision made for two items in the assessment roll relating to real property, the one embracing the land alone, the other embracing the land and the buildings on it. There is nothing in either provision indicating any intent on the part of the legislature to the effect that, when a comparison thereafter comes to be made in court in order to ascertain whether equality in the assessment has been observed, such comparison shall be confined to one of these items instead of being permitted as to both. In my opinion the law leaves the property owner claiming to be aggrieved by inequality in the assessment of his real property at liberty to attack the assessment by comparing the gross valuation placed upon his property with the gross valuation of other similar property upon the assessment roll; and he is also at liberty to compare the assessed valuation placed upon his land alone with the values placed upon the land only in the case of other properties of like character and situation. I can find no restriction in the law which forbids the aggrieved taxpayer from resorting to either method.
Certainly there is no ruling in the record below before us which prevented the defendants from making the comparison of land and buildings separately. It discloses repeated instances in which witnesses were allowed to testify as to such separate values. Thus, Mr. James Haven in valuing the relator's property said he did not allow anything for the buildings. Mr. George Fobes in valuing the Morris property did not consider the buildings of any value to the lot at all. Mr. Leon H. Ballard valued the same lot without reference to the building; *Page 521 Mr. Julius M. Harris testified to the value per front foot of the Jepson property without regard to the buildings, and, finally, Mr. William M. Abrams gave opinion evidence as to the value of the relator's house alone and without reference to the land. I mention these instances only to show that no ruling was made adverse to the admission of such testimony as the appellants insist should have been received. I cannot, however, accede to the proposition that other testimony — namely a comparison of the gross values — was not also receivable. Upon a careful examination of the whole record I conclude that no error was committed by the learned judge at Special Term which would warrant us interfering with the conclusion which he reached. I, therefore, advise an affirmance of the order appealed from, with costs.
POUND, J. I vote for affirmance for the following reasons:
1. Section 21, subdivision 3, of the Tax Law requires the assessors to set down "the full value" of real property.
2. Section 21-a of the Tax Law provides that "the total assessment only can be reviewed."
3. The total assessment should equal the full value of the real property, whether the land, exclusive of the buildings, is valued separately as provided by section 21-a or not. There is but one "full value," which should be the same by whatever method determined.
4. Evidence of the full value of real property was, therefore, competent.
5. No point survives the unanimous affirmance below, other than that raised by the objection to evidence of the full value of real property, which does not in my opinion present reversible error.