Stamm v. Southern R. R. Co. of Long Island. ing of the bell is a statutory duty, and the letting off steam from an engine is not such negligence as to render the railroad company liable for accidents resulting from fright to horses, caused thereby (L. 1854, c. 282, 87; Shearm. & Red. on Neg. § 486; Burton v. Phil., Wilm. & Balt. R. R. Co., 4 Harring. (Del.) 252; Moshier v. Utica & Sch. R. R. Co., 8 Barb. 427; Coy v. Same, 23 Id. 643; Rood v. N. Y. & Erie R. R. Co., 18 Id. 81; Field v. N. Y. C. R. R. Co., 32 N. Y. 339, 350; Steinweg o. Erie R. R. Co., 43 Id. 123). II. It was not the act of a prudent man to place himself unnecessarily in a position between the track and curb, especially when sitting upon a high seat, from which a slight concussion would be apt to dislodge him (Morris v. Phelps, 2 Hilt. 38). REYNOLDS, J.-[After stating the facts.]-We think if the learned judge had had the opportunity of analyzing the evidence as it is now presented to us, he would have come to a different conclusion. The sudden discharge of steam, under such circumstances as above stated, would be clearly an act of gross negligence, unless it was unavoidable, or necessary, at that precise time, to the safety of the engine. Even upon a thoroughfare in the city, there must be sufficient opportunities to permit an occasional escape of steam, without discharging it directly upon a passing team, and it is the duty of the engineer to seek such opportunity. Defendant's counsel argued strenuously, that it was incumbent upon the plaintiff to show that the escape was not unavoidable, or necessary, at that moment. We think, rather, it was for the defendant to show why it was done at that moment. The engine was traveling along its regular course, and if, while it was running, it was necessary to emit a sudden jet of steam, the engineer should have explained why he did not do it before or after the in People ex rel. Supervisors of Monroe v. Hadley. stant he was passing plaintiff's horse. It was prima facie a negligent act, and the burden of its explanation was upon the party managing the engine, rather than on the plaintiff, who had no means of ascertaining the reason for such an occurrence. Defendant also insists that the plaintiff was guilty of contributory negligence. There was room for the plaintiff to drive between the track and the curb, by the side of a passing train. On a street as much traveled as Broadway, it can not be unusual for teams to be so driven. The plaintiff says his horse was accustomed to the dummy, and that he had frequently driven him near it without difficulty. It was for the jury to say whether plaintiff, under the circumstances, was wanting in ordinary prudence. A new trial should be granted, costs to appellant to abide the event. NEILSON, Ch. J., concurred. PEOPLE ex rel. SUPERVISORS OF MONROE v. HADLEY. N. Y. Supreme Court, Fourth Department; Special Term, Monroe, October, 1876. EQUALIZATION OF TAXES.-STATE BOARD OF ASSESSORS. A board of supervisors, in equalizing assessments, cannot make allowance for omissions of taxable persons or property from the roll by the local assessors." * See as to the supervisor's function in equalizing, Bellinger v. Gray, 51 N. Y. 610; Bradley v. Ward, 58 Id. 401, aff'g 1 Supm. Ct. (T. & C.) 413; People ex rel. Youmans v. Supervisors of Delaware, 60 N. Y. 381, rev'g 2 Hun, 102. People ex rel. Supervisors of Monroe v. Hadley. Nor can they then review the valuation of the assessors on particular properties, or the decision of the assessors that certain property is exempt. The remedy in such case is for taxpayers to apply to the assessors to have the omitted property inserted the next year,* or, in some cases, for the supervisors, on confirmation or review of the assessment and on recommendation of the county court, to correct the error.t Hence on appeal, the board of State assessors cannot receive evidence that taxable property in a certain town or city was omitted, or was marked "free." Motion to supersede a writ of certiorari, issued to Sterling G. Hadley and others, State assessors, for the purpose of reviewing their decision on an appeal from a board of supervisors. The writ is directed to the State assessors. It commands them to return their proceedings and decision, on an appeal taken to them from a decision of the board of supervisors of the county of Monroe, in the equalization of assessments, in the fall of 1875. By their decision, the supervisors fixed the ratio of taxation between the city of Rochester and the towns in that county, for the purposes of the county tax to be levied next thereafter, in such manner that the property in the city should pay sixty per cent. of said tax, and the property in the towns should pay forty per cent. thereof. The appeal was taken by the supervisors of the several wards in the city, they claiming that the proportion of the tax to be paid by the city had been fixed too high, and thereby injustice had been done to the wards. The assessors heard both parties to the appeal, and decided that the supervisors * See Overing v. Foote, 43 N. Y. 290; People ex rel. Oswald v. Goff, 52 Id. 434. And compare, as to former rule, People v. Supervisors of Westchester, 15 Barb. 607. As to when this may be done, compare Matter of N. Y. Catholic Protectory, 8 Hun, 91; Matter of Hudson City Sav. Inst., 5 Id. 612; Matter of Farmers' National Bank, 1 Supm. Ct. (T. & C.) 385. People ex rel. Supervisors of Monroe v. Hadley. had equalized the value of the real estate in the city at an excess of $3,007,771 above its proportional value, as compared with the towns, and that the tax levied and collected on said excess, was the sum of $16,682.15, and that it should be credited to the city, and levied and collected from the town, in the assessments and collection of taxes for the current year. The alleged errors consist of the rejection of certain items of evidence offered in behalf of the towns on the hearing of the appeal. The offers were, in substance, to prove that the assessors of the several wards omitted from the assessment rolls, property of individuals and corporations known to them to exist and to be liable to taxation, to the amount of $10,000,000; also the surplus of certain savings banks, subject to taxation, to the amount of $2,000,000; also that they entered on the rolls certain real estate belonging to the city, liable to taxation, to the amount of $1,000,000 in each ward, and omitted to assess the same, but marked it "free;" also, that certain persons and firms who were assessed for personal property only, were the owners of personal property liable to taxation, to the knowledge of the assessors, largely in excess of the valuations set opposite their names; also, that the capital stock of the several banks in the city was entered on the rolls at much less than its value, to the knowledge of the assessors; and further, that the facts so offered to be shown were known to the supervisors, and were considered by them in making their equalization. The sev eral offers were objected to by the counsel representing the appellants, and were excluded by the State asses sors. W. F. Cogswell, for the relators. T. C. Montgomery, for the defendants. JAMES C. SMITH, J.-[After stating facts.]-After a careful consideration of the questions raised by the People ex rel. Supervisors of Monroe v. Hadley. affidavit, on which the ex parte writ of certiorari was allowed in this case, I am clearly of the opinion, that the writ was issued unadvisedly, and that the present motion to supersede it ought to be granted, for the reason that there is no apparent error in the proceedings sought to be reviewed. The ground of the rejection, as I understand the statements in the affidavit, was, in substance, that the supervisors had no authority to consider, for the purposes of equalization, property upon which no valuation had been fixed by the local assessors, and that the State assessors had no original power in that respect, but merely an appellate power to review the action of the bond of supervisors. In my judgment, the ground taken by the State assessors was clearly correct. The original power of valuation and assessment of property, resides in the local assessors. With a single exception, which will be hereafter referred to, no person or property can be entered upon the assessment roll, for the purposes of taxation, except by the assessors. Their duties in these respects are specifically pointed out by statute (1 R. S. 390, §§ 8-18). The duties of boards of supervisors are of an altogether different nature. They are simply to equalize valuations as between the several towns and wards in the county. They deal with the towns and wards as units. They have no original power of assessment. If the assessors have omitted a taxpayer, or an item of property liable to taxation, the supervisors can not remedy the omission by amending the assessment roll. Nor can they legitimately take the fact of such omis sion into consideration, for the purpose of increasing the valuation of property in the town or ward where the omission occured. Any increase of the valuation, based upon such consideration, would have the unjust effect of taxing the property holders whose names |