The People of the State of New York ex rel. The Delaware, Lackawanna and Western Railroad Company and The New York, Lackawanna and Western Railway Company, Appellants, v. The State Board of Tax Commissioners and the City of Buffalo, Respondents, Impleaded, etc.

The People of the State of New York ex rel. The Delaware, Lackawanna and Western Railroad Company and The New York, Lackawanna and Western Railway Company, Appellants, v. The State Board of Tax Commissioners and the City of Buffalo, Respondents, Impleaded, etc. Third Department, November 10, 1909. Tax — special franchise — equalization. The assessment of a special franchise tax should be made so as to equalize it with the other assessments of real property in the same locality. Appeal by tlie relators, The Delaware, Lackawanna and Western Railroad Company and another, from a final order of the Supreme Court, made at the Ulster Special Term and entered in the office of .the clerk of the county of Albany on the 13th day of April, 1909. The defendants, the State Board of Tax Commissioners, made an assessment of $135,000 on the special franchise of the relators in the city of Buffalo for the year 1907, and the writ herein was sued out for the purpose of reviewing such assessment. The proceeding was based, among other things, upon an alleged inequality of such assessment with other assessments on the same roll. The city- of Buffalo was allowed to intervene as a party defendant, and the State Board of Tax Commissioners and said city each made a return to the writ. The matter was referred to a referee to take evidence upon the issues raised by the returns and to report the same to the court with his findings of fact and conclusions of law. The referee made his report directing equalization of the assessment and its reduction to the sum of $99,900. The relators thereupon made a motion for the confirmation of the report, and that motion was overruled by the court at Special Term, which made an order confirming the assessment as made by the State Board, and from that order of confirmation this appeal is taken. There is no dispute about the facts. Upon the trial before the referee it was conceded that the average assessment upon the real estate in the city of Buffalo for the year of 1907 was seventy-four per cent of its actual value, and it was conceded for the purpose of this case that the State Board of Tax Commissioners in assessing the relators’ franchise at the sum of $135,000, assessed the same at the full and true value thereof. All questions in the case were waived, except the one question as to whether the assessment of the State Board of Tax Commissioners is erroneous by reason of its being at a higher valuation than the assessment of real property in the city of Buffalo for the year in question, as made by the board of assessors o.f that city. Rogers, Locke & Babcock [Louis L. Babcock of counsel], for the relators. Louis F. Desbecker and Samuel F. Moran, for the respondent the city of Buffalo. Philip A. Laing, for the respondent State Board of Tax Commissioners. [MAJORITY — Chester, J. :] Chester, J. : Before the determination of this case by the Special Term this court had held in People ex rel. Jamaica Water Supply Co. v. Tax Commissioners (128 App. Div. 13), which was a case where the State Board had assessed the relator’s franchise at full value and the local assessors had assessed the real property in the locality at eighty-nine per cént of its actual value, that eleven -per cent should be deducted from the value of the special franchise to equalize it with the assessed value of the other property, and that the result was the value of the special franchise for the purpose of taxation. Since the determinatian of the case now under review by the Special Term the Court of Appeals in the case last cited has finally put the matter at rest. On an appeal from the order made by us in that case that court has approved our conclusion in that respect and has held that under the Tax Law the assessment of a special franchise may be reduced so as to equalize it with other assessments in the same locality. (People ex rel. Jamaica Water Supply Co. v. Tax Commissioners, 196 N. Y. 39.) On the authority of that case, therefore, this order must be reversed. The final order should be reversed, with one bill of costs to the appellants, and motion granted to confirm the report of the referee and for final order in conformity therewith. All concurred. Final order reversed, with one bill of costs to appellants, and motion granted to confirm, the report of the referee and for final order in conformity therewith.