(dissenting). The primary question is whether in this particular proceeding a taxpayer may have relief from a void assessment if he has failed to appear and make objection on grievance day. The general rule is that the person whose property is assessed must appear and file a statement specifying the respect in which the assessment complained of is incorrect, submit to examination and satisfy the tax officials that the complaint has substance. Otherwise, no reduction will be allowed. (Tax Law, § 37.) In section 45-a, relating to the valuations on special franchises, the language is more limited, for the complaint is directed only to “ the full valuation or rate of equalization as fixed, * * • In proceedings to review the assessment under the special writ of certiorari provided in article 13 of the Tax Law on the grounds of the assessment being illegal, erroneous or because of overvaluation, it is incumbent on the aggrieved petitioner to show *204that application has been made in due time to the proper officials to correct such assessment. (Tax Law, § 290.)
The term “ illegality ” as used in the statute is general. If it included an assessment that is void from its inception, then the petitioner here is remediless for it is conceded that it did not appear before the Commission and file any complaint on grievance day. I do not believe the term “ illegality ” is so inclusive. If so, tax officials could assess property regardless of their jurisdiction, either as to territory or ownership. I think the term refers to the use of methods of assessment unauthorized by law. It implies fundamental jurisdiction but illegal means of exercising the power delegated. The law does not authorize them to determine the extent of their jurisdiction and assess property in territory beyond their jurisdiction or property like that of the United States which is non-assessable. Otherwise if the party, with or without knowledge of the assessment, failed to make complaint within the time limited, the tax must stand.
It is not the rule that assessments made without jurisdiction become valid and the tax must be paid, if complaint of “ illegality ” is not made on grievance day. Tax officials cannot determine conclusively the extent of their jurisdiction as a question of fact and thus deprive the owner of property of a remedy. Such acts may even be attacked collaterally. (National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Elmhurst Fire Co. v. City of New York, 213 id. 87.) So acting without authority, their, acts become illegal and void. (Matter of Donner-Hanna Coke Corp., 212 App. Div. 338, 341, and cases cited; affd., 241 N. Y. 530; Elmhurst Fire Co. v. City of New York, supra.)
The. undisputed facts before us here are that the Commission made assessment, as a special franchise, of two bridges over a non-navigable stream where it is claimed the banks and bed of the stream were owned by relator. If this be true, the Commission had no jurisdiction. (Tax Law, § 2, subds. 6, 7.) “ Their jurisdiction depended upon the facts as they were, not as they determined them to be.” (Elmhurst Fire Co. v. City of New York, supra, 91.)
If the petitioner was relying solely on the illegality of the assessment because void for want of jurisdiction, it was unnecessary for it to appear and complain on grievance day or to so state in its petition. (People ex rel. Shepard v. Griffin, 208 App. Div. 137; Rice Memorial Hospital v. Village of N. Tarrytown, 187 id. 855.) It did not need to proceed by the statutory writ but could seek another remedy. (National Bank of Chemung v. City of Elmira, supra; Elmhurst Fire Co. v. City of New York, supra; Matter of Donner-Hanna Coke Corp., supra.)
*205There is a marked difference between the facts here and those in People ex rel. L. I. R. R. Co. v. Tax Comrs. (231 N. Y. 221). That was a case of an overhead crossing of a street and the question was one of prior occupancy. The Commission had jurisdiction of the subject-matter and was not acting without authority. The relator had appeared on grievance day and complained of overvaluation, inequality and illegal assessment of the value of bridges but did not specifically complain on the ground of prior occupation. It is said that the Commission had in the first instance power to determine the fact of prior occupancy, “ and having determined it, their act was valid and binding until challenged hi the way pointed out by statute.” This is widely different in its principle from the case before us. In that case there wore the fundamental elements of jurisdiction, to wit, a street crossed by a railroad, and the question was whether there had been error in determining the simple fact as to which, in point of time, was the first occupant. Here we have the case of a non-navigable stream over which the Commission may assert no jurisdiction.
A full hearing may be had on any controverted question after the Commission has made its return. (Tax Law, § 293, as amd. by Laws of 1920, chap. 643; id. § 293-a. ) If- it is there established that the stream is navigable, the State will suffer no loss. The relator, however, should have the right to be heard on that subject.
As to the assessment of the two special franchises herein discussed, I favor affirmance.
McCann, J., concurs.
Order reversed on the law, with ten dollars costs and disbursements, and writ quashed, with ten dollars costs.