Under the emergency tax provision, amendatory of the State Tax Law, and the city ordinance adopted pursuant thereto, it was necessary for some municipal authority to determine, among other things, the time of the commencement and the completion of the buildings and the number of rooms therein. A hearing on such matters might be necessary. That is clearly indicated by the facts in this case. In the petition to the board of taxes and assessments, submitted by plaintiff in 1924, it is stated that the buildings were not completed within the two-year period. Yet it was decided in the mandamus proceeding (See Matter of Sikora Realty Corp. v. Bales, 222 App. Div. 837; affd., 248 N. Y. 592) that they were finished within that period. The petition to the board states that in one building there were 119 rooms, and in the other, 118 rooms. In the mandamus proceedings it was found there were 122 and 123 rooms, respectively. It was the duty of the board to pass upon these facts. While there is no express provision in the Greater New York Charter requiring the board to pass upon exemptions, it has been the general practice for assessing officers to do this. The power may be readily inferred from sections 15 and 21 of the State Tax Law. The statute is not self-executing, as claimed by respondent. Of course, the board may not establish jurisdiction for itself by determining erroneously a fact essential to jurisdiction. Here, the board erred in the determination of a fact, relying undoubtedly upon the petition of plaintiff. The board had jurisdiction of the property, and error occurred, not in acquiring jurisdiction, but in the exercise of jurisdiction. The board had power to assess the property, land and buildings for State and county taxes. It had jurisdiction to assess the land and buildings for local purposes, less exemptions, by taking the full value of land and buildings and deducting therefrom the amount of exemption based upon the number of rooms, not exceeding a certain amount. This procedure to be followed by the board is not provided for in the amendatory act, but must be implied, as stated, from the State Tax Law, of which it became a part. Having jurisdiction, the determination of the board was erroneous, and not illegal. The effect of ignoring the exemption is an overvaluation. (People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; affd., 222 N. Y. 657.) The remedy of plaintiff was by certiorari proceedings. The acts of the board herein may not be attacked collaterally. Matter of Donner-Hanna Coke Corporation (212 App. Div. 338; affd., 241 N. Y. 530) is not to the contrary.
Furthermore, plaintiff should not be heard to complain of the action taken by the tax board in failing to allow the exemption. In the petition submitted by plaintiff to the tax board in 1924, in *118connection with assessments which were to be the basis of the 1925 taxes, facts are stated which show that the buildings were not commenced and completed within the time required by the act, which is the basis of the claim for exemption. The board rendered its determination upon the ground that the buildings were not completed within the two-year limit. Having submitted its petition upon facts which required the board to act as it did, plaintiff is in no position to demand the relief sought in this action, even though, three years later (June 12, 1928) in its proceeding against the superintendent of buildings, the fact was found that the buildings were completed within the two-year period. Undoubtedly, assessments for 1926 and 1927 were made on the same basis. In the meantime the assessment rolls for three years had been compiled and taxes levied with the value of these buildings included.
In my opinion, the unauthorized remission of taxes by the comptroller can be of no avail to plaintiff, especially since there was no proof that plaintiff was in anywise misled. The mistake of the comptroller cannot' be visited, as an estoppel, upon the city.
I favor a reversal of the judgment and a dismissal of the complaint.
Hagarty, J., concurs.
Judgment affirmed, with costs.