In my opinion the facts, admitted to be true, in so far as this appeal is concerned, show an illegal assessment and not an *752overvaluation of the relator’s property. The Greater New York charter, in sections 889, 889a, 892 and following sections, furnishes a complete system for the assessment of all real property in the city, the entry of the assessments, the inspection and correction thereof, the presentation to and confirmation by the board of aldermen of such assessments, and the final fixing of a tax. (Laws of 1901, chap. 466, as amd. by Laws of 1911, chap. 455, and Laws of 1913, chap. 324.) So far as material to this appeal section 889 provides as follows: “ It shall be the duty of the deputy tax commissioners, under the direction of the board of taxes and assessments, to assess all the taxable property in the several districts that may be assigned to them for that purpose by said board, and they shall furnish to the said board, under oath, a detailed statement of all such property, * * * giving * * * the sum for which, in their judgment, each separately assessed parcel of real estate under ordinary circumstances would sell if it were wholly unimproved; and separately stated, the sum for which under ordinary circumstances, the same parcel of real estate would sell with the improvements, if any, thereon.” Section 889a provides: “ A building in course of construction, commenced since the preceding first day of October and not ready for occupancy, shall not be" assessed.” Section 892 provides for the keeping in the several offices established by the said board, books to be called “ the annual record of the assessed valuation of real and personal estate of the borough of-,” in which shall be set down the assessed valuation of such property within the limits of the several boroughs. In such books the assessed value of real estate shall be set down in two columns; in the first column shall be given, opposite each separately assessed parcel of real estate, the sum for which such parcel, under ordinary circumstances, would sell if wholly unimproved; and in the second column shall be set down the sum for which the said parcel, under ordinary circumstances, would sell, with the improvements, if any, thereon. Provision is then made for the books to be open for public inspection, examination and correction on certain days therein specified, of which notice is to be given by advertisement. Succeeding sections provide that any person feeling aggrieved by the assessed value *753of real estate may apply in writing during the time that the books shall remain open, and for the examination into the complaint by the board, and if in their judgment it is erroneous the same is to be corrected.
In the instant case the deputy assessors assessed the relator’s real estate unimproved $120,000 and with improvements thereon $635,000, and it was thus entered upon the “ Annual record of assessed valuation of real and personal estate of the Borough of Manhattan.” During the period provided therefor the relator duly made his claim that the assessment was illegal on the ground that the assessment was placed upon improvements which consisted of a building, in course of construction, commenced since the preceding first day of October, and not ready for occupancy on the 1st day of October, 1916, and, therefore, the assessment thereof was prohibited by section 889a of the Greater New York charter.
The majority opinion limits the .meaning of the word “ illegal ” in section 906 of the Greater New York charter (which authorizes certiorari proceedings) to apply only to an act void for want of jurisdiction; or in other words to an act not authorized by law, and holds that it cannot apply to an act done in contravention of an express statutory prohibition, but that such an act is “ erroneous.” It seems to me that this is not a technical construction of the statute but one that does violence to the plain meaning of the English language. An act beyond the jurisdiction of the board is an illegal act, but it does not follow that it cannot do an illegal act within its jurisdiction.
An act prohibited by law is an illegal act. Thus when the building upon this parcel of land was assessed, the assessors did an act that they were expressly prohibited from doing. In my opinion the act of the assessors cannot be deemed an “ overvaluation ” for that presupposes a proper valuation which has been exceeded. It may be the fact, and probably is, that the building that improves this parcel of land is of the value at which it is assessed. The law says that it has no value for taxation purposes; that such a building is not an improvement that can be taken into consideration. For the purposes of taxation it does not exist.
*754In Matter of New York Catholic Protectory (77 N. Y. 342, 344) the court said: “ The imposition of the tax in question was manifestly illegal, the property upon which it was assessed being by law exempt from taxation.” The Appellate Division of the Second Department has very recently (July 31, 1917) passed on the identical question here involved and said: “ The return to the writ shows that the unimproved value of the real estate was fixed at $12,000, and its value with improvements was $45,000. The return also shows clearly that the assessment of the lot with improvements related to the building. If the building was in the course of construction, it was exempt, and the assessment was illegal. There was no occasion for showing that there was an overvaluation.” (People ex rel. Gleason v. Purdy, 179 App. Div. 232, 235.) I would have been content to rest my dissent upon this authority had it not been for the suggestion in the majority opinion that the question was not directly raised in that case by a motion to quash the proceeding. The only difference between these cases is that here the facts are admitted; in that case they are found on undisputed evidence. That the identical question here considered was there determined appears from the above quotation from the opinion.
Smith, J., concurred.
Order affirmed, with ten dollars costs and disbursements.