E. B. Powell and F. E. Hamilton, for appellant. Frank E. Hiscock, for respondent. No such HARDIN, P. J. February 19, 1887, plaintiff held drafts under discount drawn by Austin & Co., of Oswego, upon Baker & Clark, of New York city, which had been accepted and grown overdue, and the defendant on that day delivered to the plaintiff his bond conditioned to pay up to the sum of $5,000 of said debt, providing the plaintiff should use due diligence to collect the same of the acceptors or their assignee. A claim was filed with the assignee by the plaintiff. Plaintiff took no proceedings against the assignee, and in no manner sought to coerce the final settlement of his accounts. final settlement has been had. Plaintiff brought a suit against Baker & Clark upon the drafts, and obtained personal service on the day of August, on one of the defendants, and on the 7th of September, 1887, upon the other defendant. In that suit judgment was not taken and entered until the 4th day of January, 1888. An execution was issued on the 17th day of February, 1888, but the same had not been returned when the action was brought on the 17th day of March, 1888. It was returned, however, nulla bona on the 12th day of April, 1888. The answer of the defendant sufficiently alleges the negligence, laches, and failure of the plaintiff to use diligence in collecting the debt held by it mentioned in the bond executed by the defendant. When he delivered the bond he became a surety, a guarantor of the collection of the debt, or so much thereof as mentioned in the bond. Reading the bond in the light of the surrounding circumstances, and construing the same with the receipt or agreement made by the plaintiff when it took the bond, (Bank v. Kaufmann, 93 N. Y. 273,) we are of the opinion that the defendant stipulated as a condition precedent to his promise to pay that the plaintiff should use due diligence to collect the debt of the acceptors and their assignee. When Griffith v. Robertson, 15 Hun, 344, was before this court attention was given to an instrument containing a guaranty of collection, and speaking for the court in that case, I said: “We think the instrument executed by the defendant Robertson must be construed and held to be a guaranty of collection. In such a guaranty it is a condition precedent that the creditor shall diligently endeavor to collect the amount of the principal debtor, by exhausting the ordinary legal remedies for that purpose, and a failure to do so works a discharge of the guarantor." This doctrine was laid down by TALCOTT, J., in Insurance Co. v. Wright, 13 Hun, 166, affirmed 76 N. Y. 445, and cases sustaining the doctrine are cited. Kies v. Tifft, 1 Cow. 98; Craig v. Parkis, 40 N. Y. 181; Moakley v. Riggs, 19 Johns. 69; Loveland v. Shepard, 2 Hill, 139. In delivering the opinion of the court of appeals in Insurance Co. v. Wright, affirming the same case in 13 Hun, 168, CHURCH, C. J., said: "The law is well settled in this state that such a guaranty is an undertaking to pay the sum secured by the obligation, guarantied, provided the principal is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him. Due diligence in exhausting the legal remedies against the principal is a condition precedent to any liability against the guarantor. Nor will proof of insolvency, or inability to pay on the part of the principal, avail as a substitute for a failure to pursue the legal remedies. Craiy v. Parkis, 40 N. Y. 181. It follows that this condition is a part of the contract, and must be shown to have been performed, as a demand and protest of a note must be shown, in order to fix the liability of an indorser.'" The case from which we have just quoted was decided in 1879. It was referred to and followed by this court in Tiffany v. Willis, 30 Hun, 266, decided in 1883. The same doctrine is reiterated by the court of appeals in Schmitz v. Langhaar, 88 N. Y. 506, viz.: "In such a case the law in this state construes the obligation as an undertaking that the demand is collectible by due course of law, and the guarantor bound to pay the sum specified in the original contract, provided the principal is prosecuted to judgment and execution with due diligence, and the same cannot be collected of him.' Craig v. Parkis, 40 N. Y. 181. We have come to regard those proceedings, and the return of the proper officer, that the writ cannot be enforced, as the best evidence that the method of procedure prescribed by law for the collection of debts has been followed, and of the debtor's inability to pay." In the case from which we have just quoted the guaranty was of the collection of a claim against a deceased party, and the court took occasion to point out "the difference between this case and that of a guaranty of a collection of a claim against a living debtor;" and probably the doctrine of that case is sufficient to warrant us in supposing the diligence due from the plaintiff, so far as the assignee of Baker & Clark was concerned, was indicated by a presentment of the claim to the assignee, but we find nothing in that case which absolves the plaintiff from exercising due diligence against Baker & Clark, the acceptors. A non-performance of the duty of the plaintiff to prosecute to judgment and execution, and a return thereof, the claim against the acceptors, cannot be excused by showing that the debtors were insolvent, and that apparently or probably nothing would have been obtained from them by means of a judgment and execution. Craig v. Parkis, 40 N. Y. 181. The diligence which the defendant exacted was required to be shown during the year mentioned in his bond. The plaintiff did not enter judgment as soon as the defendant's time to answer had expired in the action brought against the acceptors; on the contrary it gave several stipulations extending the time to answer, and postponing its right to enter up judgment. It appears that the extensions voluntarily given by the plaintiff allowed 99 days more time to the debtors to answer than by due process of law they were entitled to. When this action was brought the plaintiff had not used or exhibited that diligence required by the conditions of the bond executed by the defendant, therefore its right of recovery did not exist according to the terms of the defendant's contract. As we have already observed, defendant was entitled, as he was a surety, to have the exact terms of his bond complied with before he was called upon, under the terms of the bond, for a fulfillment of the promise on his part in respect to the payment of the sum of $5,000 stated in the bond. There is nothing in the evidence indicating any waiver of the terms of the bond. To make out such waiver there must be clear and convincing evidence. Insurance Co. v. Wright, 13 Hun, 168, affirmed 76 N. Y. 445. On the contrary we think the plaintiff's attorney or agent was from time to time notified that the defendant would not pay unless plaintiff used due and legal diligence. Clear intimations to that effect were given. We are of the opinion that the evidence offered by the plaintiff, when read with the evidence offered by the defendant, did not establish that the plaintiff had used due diligence "within the time limited in the bond," and that the laches and negligence of the plaintiff appearing in the case were such that the trial court ought not to have held as matter of law that plaintiff was free from negligence and laches, and had fully complied with the tenor and terms of the bond executed by the defendant. We think it was error to direct a verdict in favor of the plaintiff. Thomas v. Woods, 4 Cow. 173; Backus v. Shipherd, 11 Wend. 634. We think a new trial should be ordered. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur. PEOPLE ex rel. WESTERN UNION TEL. Co. v. DOLAN et al., Assessors, (three cases.) (Supreme Court, General Term, Third Department. July 7, 1890.) TAXATION-ASSESSMENT-Review-CERTIORARI. Certiorari will not lie under Laws N. Y. 1880, c. 269, to review an assessment alleged to be erroneous by reason of overvaluation where the party aggrieved has failed to apply to the assessors for relief while the assessment roll is still under their control, by appearing before the board on grievance day, and objecting to the assessment as prescribed by Laws N. Y. 1857, č. 536. LEARNED, P. J., dissenting. Appeal from special term, Rensselaer county. Certiorari brought by the Western Union Telegraph Company against Edward Dolan and others as assessors of the city of Troy. Argued before LEARNED, P. J., and LANDON and MAYHAM, JJ. MAYHAM, J. This is an appeal from a judgment of this court at special term dismissing and quashing a writ of certiorari brought by the relator to review and set aside an assessment made by the respondents as general assessors of the city of Troy, in 1885, on relator's property in Troy. The assessment roll for that year was filed by the assessors with the city comptroller on the 26th day of February, 1886, to which was attached the oath of the assessors, in the form required by chapter 201 of the Laws of 1885, sworn to on that day. The writ of certiorari was allowed on the 13th of March, 1886, and on that day filed in the Rensselaer county clerk's office, and served on the respondents. The learned trial judge found that the property of the relator, including the property of the other telegraph companies owned or controlled by it in the city of Troy, was assessed at the aggregate sum of $11,700 for taxation in the city of Troy for 1885; that the aggregate assessed valuation of all the taxable property in that city for 1885 was $46,600,932; and that the rate of taxation was $1.24 on each $100, and that the total tax assessed against that city for 1885 was $575,434.53, of which the relator's share was $145.08. He also found that the relator was a domestic corporation with a capital of about $81,000,000, with a business office in the city of Troy, with connection forming a part of an extensive system of transmitting information and news by telegraph, the earnings of which at that office during the year 1885 were upwards of $30,000, exclusive of the rental of seven private wires at $2,000 each a year; that no application was made by, or on behalf of, the relators to the respondents, before the completion of the assessment roll for the year 1885, for any reduction of the valuation of its property on said roll; that for the year 1885 the relator neglected to make and deliver to the general assessors of the city of Troy, or any of them, a written statement of its property in said city, as required by section 2, tit. 4, c. 13, pt. 1, of the Revised Statutes; that it does not appear from the evidence that the relator's property is taxed or assessed out of proportion to other real estate in said city. On the hearing the relator gave evidence tending to show the actual cost of the material and construction of its telegraph property in the city of Troy, and the witness upon that subject estimated the cost at $4,087.20, and now claims that the assessment is excessive and erroneous, because it is largely in excess of that amount. Upon these and other facts found by the judge at the trial court, which need not be recited here, the learned trial judge dismissed the writ. It is insisted that the judgment rendered upon the decision of the special term should be reversed on the ground of alleged erroneous findings of fact by the trial court, but on a careful examination of the evidence we are unable to discover any essential finding of the court that is not supported by the evidence. This writ was granted under the provisions of chapter 269 of the Laws of 1880, which provides for a review of the assessment, and a reversal of the same in cases therein enumerated. The petition must set forth either that the assessment is illegal, specifying the ground of the illegality; or is erroneous by reason of overvaluation; or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll, by the same officers, and that the petitioner is or will be injured by such alleged illegal, erroneous, or unequal as sessment. Section 1, c. 269, Laws 1880. The petition in this case makes no claim that the assessment is illegal, but it alleges that it is erroneous by reason of overvaluation; and is unequal in that the assessment has been made at a higher proportionate valuation than other real property on said roll, by said officers, and that the relator will be injured in consequence thereof. Upon the question of overvaluation the relator gave some evidence upon the trial, first, as to the cost of the material and construction, and also a judgment in a proceeding by certiorari from the assessment of the same property in 1883, by which it appears that other real estate in the city of Troy was assessed at 33 per cent. only of its value that year, and the property of the relator was assessed at its full value, in which action it was adjudged and determined that the relator's property should be assessed at the same rate as other property, and when so assessed the aggregate should not exceed in that year the sum of $6,000. While this evidence was doubtless competent to be considered by the court as bearing upon the question of real value, it was by no means conclusive upon it, in determining whether or not there was an overvaluation. As was said by the learned trial court, the cost of construction was by no means controlling as to the value of the relator's property in Troy, that was only an integral part of a great system which extended over the entire state, and by itself might be of little value as compared with its value as a part of the entire system. Again, if that evidence was to be considered as controlling, then the other evidence in the judgment roll offered by the relator would be nullified, as that judgment fixed the maximum one-third value at $6,000, which on the reassessment ordered was made $3,900, and which if increased to its real value would, at that rate, amount to $11,700, the exact amount of the assessment complained of. But we are not called upon, on this appeal, to speculate as to the real value of the relator's property in Troy. The assessors having fixed by the assessment the actual value, and their assessment having been sustained by the judgment of the special term, this court on appeal should not interfere, unless the finding of the special term is clearly against the preponderance of evidence. People v. Keator, 36 Hun, 592. This court cannot, from the evidence in the record, discover any such preponderance of evidence, upon the questions of facts submitted to the special term, under the rule laid down in the case above cited, as to justify a reversal of the findings of the same upon the facts on the ground of overvaluation; nor does the evidence in this case justify the court in reversing such judgment on the ground that the relator's property was assessed at a higher proportionate rate than other real property in the same territory, and assessed by the same persons. Indeed there seems to be no evidence in the case upon that subject, as there was no proof giving a comparison of values of other property with that of the relator's for that year. It follows that the judgment must be affirmed unless some erroneous principle was adopted by the court at special term in determining the questions in issue before it at the trial. In determining the questions before the court at the trial, it was doubtless competent for it to take into account all subjects which bore directly upon the value of the relator's real property in Troy, and upon that subject the cost, earnings, extent of the system of which the part located in Troy was a part, might all be considered by the court; all of these might be considered as elements in the problem. People v. Keator, 36 Hun, 594; People v. Weaver, 34 Hun, 321; People v. Pond, 13 Abb. N. C. 1; Smith v. Mayor, 68 N. Y. 552, 555. It does not appear, therefore, that the trial judge violated any rule of law in reaching his conclusion upon the question of value. People v. Hicks, 40 Hun, 601, 602; People v. Weaver, 36 Hun, 322; People v. Pond, 13 Abb. N. C. 1. Neither the actual nor relative value of property assessed can be determined in a case like this with mathematical certainty. Much must depend upon the opinion of assessors in making the assessment, and upon the opinion of witnesses in proceedings to review the same, and the wide diversity of opinion of witnesses demonstrates that values and equalities of value cannot be reached with absolute accuracy, but can only be approximated. On a certiorari from the determination of the assessors, the relator assumes the burden of proof, and must establish the overvaluation, or inequality, of the assessment. This the special term holds the relator has failed to do by proof. The assessment being an official act, the presumption in favor of its correctness must prevail until shown to be erroneous by affirmative proof on the part of the relator. This has not, we think, been done by any preponderance which would justify the interference on this appeal with the findings and determinations of the special term. But aside from the questions of facts raised, and the disposition made of them at the trial, we do not see how the assessment of 1885 can be reviewed on this certiorari, unless the relator appeared before the assessors on what is known as "grievance day" and presented its objections to the assessment. This the trial court finds it did not do, and we fully concur in that finding. The only evidence offered by the relator was that of Carter, who was a local agent of the relator in Troy, and he does not pretend to swear that he attended on any "grievance day" before the assessors, or any one of them. He was in the common council chamber at some time, and looked over the assessor's books, but cannot swear that any assessor was present, or what he said. That clearly did not amount to such appearance and objection to the assessment on "grievance day" as is contemplated by statute. Chapter 176 of the Laws of 1851, as amended by chapter 536 of the Laws of 1857, particularly points out the method of proceeding by the assessors on completing the assessment roll to enable parties claiming to be aggrieved to apply for a reduction of their assessment, and the method to be pursued by and before the assessors on such application, and no such appearance on the part of the relator was had, or proceeding taken, as required, to put the assessors on inquiry as to the correctness of the assessment of the relator's property for that year. That being so, it seems well settled that a certiorari will not lie, under chapter 269 of the Laws of 1880, where the party claiming relief has failed to apply to the assessors while the assessment roll is under their control, by appearing before the board of assessors on "grievance day," and objecting to the assessment, as prescribed by chapter 536 of Laws of 1857. In the case of People ex rel. Boston H. R. Co. v. Assessors of the Town of Hoosac, etc.,1 PECKHAM, J., in delivering the opinion of the court, says: "I cannot think it was ever the intention of the legislature to grant this remedy [writ of certiorari] to those who had failed to avail themselves of the other provisions of law, by appearing before the assessors at the legally appointed time for hearing such complaints, and obtaining from that body some judgment upon their claims. * It is practically granting an appeal from a judgment by default, where jurisdiction over the person and subject-matter exists, and is at war with all principles upon which courts of review are accustomed to grant relief. Such a departure should be provided for by the legislature in absolutely unmistakable terms." In People v. Commissioners, 99 N. Y. 257, 1 N. E. Rep. 773, the court says: "The case made by the relator does not entitle it to relief under chapter 269 of Laws of 1880. The assessment was regular. The relator did not avail himself of the opportunity to apply for a correction of the assessment, either on the ground of overvalue or irregularity. The act of 1880 gives a remedy by certiorari to review and correct an illegal, excessive, or unequal assessment. But it would, we think, be an unwarrantable construction of the statute to permit a party, complaining of an assessment, to lie by without availing himself of the opportunity to remedy his grievance by application to the commissioners, under the statute of 1859." * 1 Not reported. |