By the Court,
E. Darwin Smith, J.The return to the writ of certiorari in this matter presents a clear case of error in the final determination of the assessors. They state that *543in their primary assessment roll they assessed the relator as follows:
For banking house and lot,......$3,000
Upon a valuation equal to the amount of capital stock paid in or secured,..... 25,000
Personal property including surplus earnings of
bank,.......... 28,000
Less, banking house,......3,000
--- 25,000
That after completing- the said roll they gave the notice required by the statute fixing a time when they should meet and hear appeals from said assessment, and that on the day so fixed the relator appeared and stated that he appealed from said assessment; and he made oath and testified before the said board of assessors that he had no personal property liable to taxation, except the capital stock of his bank, amounting to $25,000. That $10,000 of that amount was invested in United States six per cent bonds ; and that his banking house, assessed at $3,000, formed a part of the capital of his bank. He was asked some questions by the board, but in no respect varied his statement in regard to his property, or furnished or gave any evidence showing or tending to show that he had any other property liable to taxation.
Upon this statement it. was the clear duty of the assessors to have amended their assessment roll by striking out $10,000 for the amount of the government securities not taxable, forming part of the capital of his bank ; and as they had assessed his banking house as real estate,, the amount of its valuation should also have been stricken out from the amount of the capital stock of his bank ; and the whole amount assessed for personal estate of $25,000 should also have been stricken out. He testified that he had no personal property liable to taxation except the capital stock of his bank; and the board of assessors, I think, were bound to take his statement under oath on that point.
*544Under the assessment law. as it stood under the revised statutes and before the amendment of 1851, the assessors were hound to correct their assessment roll before appeal by any person assessed, in accordance with his affidavit made and produced to them in conformity with the statute. (Livingston v. Hollenbeck, 4 Barb. 9. The People v. The Supervisors of Westchester Co., 15 id. 615.) The act of 1851, amending the statute relating to assessments and the collection of taxes, (see Session Laws of 1851, ch 176, p. 334,) takes away the conclusiveness of the affidavit before required, and makes it the duty of the assessors, when an application is made by any person,- to reduce the value of his real and personal estate, to examine such person under oath touching the value of his property, and after such examination they shall fix the value thereof as they may deem just. This provision does not give the assessors any right to fix such value arbitrarily or capriciously. They act judicially in fixing such value, and are called upon to pass upon the evidence produced before them ; and when they have no ground in such evidence to fix a valuation different from that sworn to by the person applying for such reduction, they are hound, I think, to take and follow his statement under oath, as much so as the assessors were formerly required to fix such value at the sum specified in the affidavit required in such cases by the 15th section of article 2d, chapter 13 of part first of the revised statutes.
The object of this amendment was to allow the assessors to examine the person appealing from their assessments, and to subject such person to an- oral examination in respect to his property, such as the assessors might think- proper to make. But the assessors must act upon the evidence before them like all other officers acting in a judicial capacity, and fix the valuation at a just sum, such as will he warranted by the evidence.
In this case I think it is very clear that there was nothing in the evidence before the assessors to warrant them in re-*545taming the assessment of the personal property of the relator at $25,000, besides the other errors above specified.
The only difficulty I have in the case is upon the question whether we can give any appropriate relief to the relator in this proceeding. The certiorari was directed to the assessors, and was a proper writ to bring the erroneous determination of the assessors before us for reversal or correction. If it a had issued while the roll was in the hands of the assessors, it would have arrested it in their hands and stayed all proceedings upon it. But they return that after correcting said roll as stated, they duly made and verified their certificate on said roll, and delivered the same with the certificate therein to the supervisor of said town of Milo, and that the said roll is not in their possession, and has not been in their possession or control since the coming to them of the said writ of certiorari.
The writ of certiorari brings up, or is always supposed to bring up, the record of the inferior tribunal to which it is addressed. The judgment to be rendered in this court in such cases is to affirm or "reverse, modify or correct the record. It is a judgment upon the record, and if the record were before us we might direct our clerk to correct the roll or send it back to the assessors for correction. When it appeared upon this return that the roll had been delivered to the supervisor, we could have directed a writ of certiorari to him, or to the board of supervisors if the roll had been delivered to such board, to bring the same before us. The writ would reach the record and bring it up wherever it might be, until it had passed beyond our joower to review the assessment by its delivery to the collector with the warrant of the board of supervisors annexed after the extension of the tax for its collection.
Although the assessors have made returns to the writ, stating in full their proceedings as a board of assessors, and-we are satisfied that there was clear error in such proceedings,*546I think we can render no judgment that can now affect the assessment roll, ór correct such errors. (The People v. The Supervisors of Allegany, 15 Wend. 198. The People v. The Mayor of N. Y., 2 Hill, 9. The People v. The Supervisors of Queens Co., 1 Hill, 195.)
[Monroe General Term, March 7, 1865.The relator has, I think, now no remedy except by action against the county for the amount of the tax improperly assessed and levied.
I think we can render no judgment on this writ, but must dismiss or quash the same.
Ordered accordingly.
James C. Smith, Johnson and E. Darwin Smith, Justices.]