be ordered or adjudged or determined that the assessment complained of was illegal, erroneous or unequal, and correcting or directing correction thereof, and such order shall not be made in time to enable the assessors or other officers to make a new or corrected assessment for the use of the board of supervisors or for the use of the town, village, city or school officers levying any tax upon such property, the assess ment of which has been or shall be so ordered or adjudged or determined to be illegal, erroneous or unequal, then any tax collected or to be collected upon such illegal, erroneous or unequal assessment shall be refunded as follows:

1. When such tax upon such illegal, erroneous or unequal assessment shall have been levied by the board of supervisors, then at an annual session of the board of supervisors held after the order for such correction has been granted and entered there shall be audited and allowed to the petitioner or other person who shall have paid such tax, and included in the tax levy of the town, village or city in which the property is situated, made next after the entry of such order, and paid to the petitioner, or other person paying the tax, the amount paid by him, in excess of what the tax would have been if the assessment had been made as ordered, adjudged or determined by such order of the court, together with the interest thereon from the date of payment. In case the amount deducted from such assessment by such order exceeds ten thousand dollars, so much of the tax as shall be refunded by reason of such corrected assessment, other than the proportion or percentage thereof collected for such town, village or city purposes, shall be levied upon the county at large and paid with interest, to the petitioner or other person paying the tax without further audit; and the board of supervisors shall audit and levy upon such town, village or city, the proportion or percentage of such excess of tax collected for such town, village or city purposes, which shall be collected and paid with interest to the petitioner, or other person paying the tax, without other or further audit.

2. When such tax upon such illegal, erroneous or unequal assessment shall have been levied by the proper officers of any city or village, then the common council or other auditing officer or officers of such city or village shall immediately after such correction audit and allow, to the petitioner or other person who shall have paid such tax, and include in the tax levy of such city or village in which the property is situated made next after the entry of such order and cause to be paid to such petitioner or other person paying such tax, the amount paid by him in excess of what the tax would have been if the assessment had been as ordered, adjudged or determined by such order of the court together with interest thereon from the date of the payment.

3. When a tax shall have been levied and collected in any school district of this state upon any property within such district on any assessment value thereof which shall have been ascertained from a town assessment-roll and which assessment upon such town roll shall have been ordered, adjudged or determined by order of the court as aforesaid to have been illegal, erroneous or unequal and which assessment though made by town assessors was adopted and was used in such district for the purpose of taxation for school purposes, then and in such case the trustees of such school district shall audit and allow and cause to be paid to the petitioner, or other person who shall have paid such tax, the amount paid by him in excess of what the school tax would have been in such case if the assessment had been made as ordered, adjudged or determined by such order of the court, together with interest thereon from the date of the payment.

Application to the proper officer for the audit and allowance of such moneys must be made by the petitioner or other person paying such tax as follows: Where the writ of certiorari was issued pursuant to chapter two hundred and sixty-nine of the laws of eighteen hundred and eighty, and such tax shall not have been heretofore refunded, such application must be made within three years from the twenty-fourth day of July, nineteen hundred and seven. When the writ of certiorari was issued under the provisions of this section, then such application for audit and allowance must be made within three years after the entry of the final order ordering or adjudging or determining such assessment to have been illegal, erroneous or unequal; provided that the time of the pendency of any appeal in any such proceeding or from any such order shall not be deemed any part of such three years. (Sec. 296 of the Tax Law, former sec. 256 of the Tax Law of 1896, as am'd by ch. 721, L. 1907.)

Section 296 of the Tax Law applies only where assessors have jurisdiction.-Where assessors have jurisdiction, the above section governs the proceedings to be taken in refunding the excess of the tax over what it should have been. People ex rel. Manhattan Ry. Co. v. Coleman, 48 Hun, 602 (1888). Where there is no jurisdiction to assess, Section 296, Tax Law, does not affect a plaintiff's right to recover the tax. Dale v. City of New York, 71 App. Div. 227 (1902).

Costs. Costs shall not be allowed against the officers whose proceedings may be reviewed under any such writ unless it shall appear to the court, that they acted with gross negligence or in bad faith or with malice in making the assessment complained of. If the writ shall

be quashed or the assessment confirmed or if the assessment complained of shall be reduced by an amount less than half the reduction claimed before the assessing officers, costs and disbursements shall be awarded against the petitioner. If the assessment shall be reduced by an amount greater than half the reduction claimed before the assessing officers, costs and disbursements shall be awarded against the tax district represented by the officers whose proceedings may be reviewed. The costs and disbursements shall not exceed those taxable in an action upon the trial of an issue of fact in the Supreme Court, except that if evidence shall be taken there shall be included in the taxable costs and disbursements the expense of furnishing to the court or to the referee a copy of the stenographer's minutes of the evidence taken. (Sec. 294, Tax Law, former sec. 254, Tax Law of 1896, as amended by chap. 281, L. 1905.)

Source: Sec. 6, chap. 269, L. 1880. The provision as to the payment of costs and disbursements by the taxing authorities, covered by the amendment of 1905, does not take effect until July 1, 1905, nor does it apply to proceedings under writs granted before that time.

This section only relieves assessors from costs upon the hearing at special term on the return of the certiorari. Costs on appeal are to be given or withheld in the discretion of the court as provided on an appeal from an order under Code of Procedure, Section 3239. People ex rel. Smith v. Com'rs, 101 N. Y. 651 (1886).

Costs in certiorari proceedings under Chapter 269, Laws of 1880, are governed by that act, and not under the provisions of the Code in reference to costs in special proceedings generally, viz.: Costs on appeal are to be taxed as costs on appeal from orders under Section 3239 of the Code. People ex rel. Oak Hill Cemetery Ass'n v. Pratt, 66 Hun, 578, aff'd 138 N. Y. 655; see, also, People ex rel. Warren v. Carter, 46 Hun, 444 (1887). Costs at special term are awarded against assessors only where there is gross negligence. People ex rel. Eckerson v. Christie, 14 N. Y. St. Rep. 525 (1888). The costs provided for in the amendment of 1905, in cases where the assessment is reduced more than one-half of the reduction claimed before the assessing officers, are not to be awarded against the assessors but against the tax district in which the assessment is made.

Presumably, the final order in the certiorari proceedings should recite the fact that the costs are to be paid by the tax district in which the assessment is made. The costs to be awarded against the petitioner, or against the tax district, under the amendment of 1905, will be governed by Sections 3251, 3253, 3255 and 3256 of the Code of Civil Procedure.

Appeals. An appeal may be taken by either party from an order, judgment or determination under this article as from an order, and it shall be heard and determined in like manner as appeals in the Supreme Court from orders. All issues and appeals in any proceeding under this article shall have preference over all other civil actions and proceedings in all courts. (Sec. 295, Tax Law, formerly sec. 255, Tax Law of 1896.)

Source: Same in substance as sec. 7, chap. 269, Laws of 1880. An appeal to the Appellate Division must be taken within thirty days. (Section 1351, Code Civil Procedure.)`

For the purpose of an appeal a judgment in proceedings by certiorari to review an assessment is to be considered as an order, and an appeal to the Court of Appeals from a decision of the general term affirming a reduction of an assessment is limited to sixty days under the above section of the Tax Law. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610 (1885); affirming 36 Hun, 592 (1885).

What may be reviewed on appeal.-On appeal to the Court of Appeals in certiorari proceedings only questions of law may be reviewed; the determination of the court below on the question of value is final and conclusive when that question was fairly in dispute, unless proper elements were excluded, or improper ones considered, or the conclusions arrived at by legal error. People ex rel. Rome, W. & O. R. R. v. Hicks et al., Assessors; same v. Eddy et al., Assessors; same v. Bancroft et al., Assessors, 105 N. Y. 198 (1887).

On appeal to the general term of the Supreme Court findings of fact determining the inequality of the relators' assessment may not be reviewed. The only inquiry is as to whether there was legal evidence tending to the conclusion arrived at, and

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whether any errors of law affected the decision. People ex rel. Eckerson v. Christie, 14 N. Y. St. Rep. 525 (1888). Questions of fact cannot be reviewed on an appeal from a unanimous decision of the Appellate Division affirming a finding of fact in certiorari proceedings under the Tax Law, where there was a trial de novo at special term. People ex rel. Sands v. Feitner, 173 N. Y. 647 (1903).

When the only question raised upon certiorari was error or inequality of assessment and a re-assessment is ordered by special term and affirmed by the Appellate Division, no question of law is raised for review by the Court of Appeals. People ex rel. Malcolm Brewing Co. v. Assessors, 154 N. Y. 437 (1897); aff'g 19 App. Div. 596.

It seems that Article 6, Section 9, New York Constitution, providing "that no unanimous decision of the Appellate Division that there is evidence supporting a finding of fact, shall be reviewed by the Court of Appeals," applies to special proceedings, and therefore to an order of affirmance in a statutory proceeding to review an assessment. People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417 (1897); reversing 6 App. Div. 356.

A finding of fact by the special term, when supported by evidence, cannot be reviewed by the Court of Appeals on appeal. Where the Appellate Division reverses a final order at special term, involving the question of value of relator's assets, on appeal to the Court of Appeals it may be assumed, under Section 1361 of the Code, that the reversal was not on the facts, but upon some error of law. People ex rel. Manhattan Ry. Co. v. Barker, 165 N. Y. 305 (1900); reversing 48 App. Div. 248. Where there is some evidence to support the conclusion reached by the commissioners of taxes, the Court of Appeals will not interfere. It will not review or reverse on appeal a determination of assessors on a question of fact as to the true amount of a corporation's assets. People ex rel. Hecker-Jones Co. v. Com'rs, 147 N. Y. 31 (1895).