Argued April 20, 1937
Decided May 25, 1937
Appeal from the Supreme Court, Appellate Division, Second Department.
Aaron Simmons, Corporation Counsel ( William L. Moran of counsel), for appellants.
Benjamin W. Moore and Milton L. Romm for respondent.
Relator's real property in New Rochelle was assessed for the tax year 1933 as of the value of $1,629,475. The petition for certiorari alleges error by reason of overvaluation and inequality as required by section 290 of the Tax Law (Cons. Laws, ch. 60). The return denies these allegations and alleges that all the real property in New Rochelle was assessed at its full value. On the petition, the order of certiorari and the return a reference was ordered to take testimony in relation to the issues raised by the pleadings. The referee reported that the property was overvalued to the extent of $325,895. He made no express finding in respect to inequality but in his opinion cited the rule that "if overvaluation is proven, inequality is presumed."
In appraising the value of the land and buildings, the referee proceeded upon the correct theory. Evidence was produced in relation to the method of construction, depreciation and reduction in rental. The effect of the financial depression since 1929, which the referee considered, is also a proper element of present market value. ( Great Northern Ry. Co. v. Weeks, 297 U.S. 135; Heiman v. Bishop, 272 N.Y. 83, 87.) Market value as of the date of the assessment is a question of fact which, when calculated by correct rules of law and supported by evidence, is not subject to review by this court. ( People ex rel. Warren v. Carter, 109 N.Y. 576.)
Since the relator proved overvaluation, it has shown itself to be aggrieved within the meaning of section 290 of the Tax Law. It was under no obligation expressly to prove inequality. Courts will not assume that all property in the assessment district has been overvalued. Unless such is shown to be the fact, then the assessment of relator's property in excess of its full market value involves inequality. ( People ex rel. Ward v. Feitner, 61 App. Div. 456; affd., 168 N.Y. 677; Matter of Cahill v. Goes, 242 App. Div. 423.)
The order should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.