The People of the State of New York ex rel. Rochester Gas and Electric Company, Appellant, v. George E. Priest and Others, as Tax Commissioners of the State of New York, and Comprising the State Board of Tax Commissioners,. Defendants. (No. 1.); Charles F. Pond and Others, as Assessors of the City of Rochester, Respondents

The People of the State of New York ex rel. Rochester Gas and Electric Company, Appellant, v. George E. Priest and Others, as Tax Commissioners of the State of New York, and Comprising the State Board of Tax Commissioners,. Defendants. Charles F. Pond and Others, as Assessors of the City of Rochester, Respondents. (No. 1.) Franchise tax assessment — after its review by certiorari, addressed to the State■ • lax Commissioner's, and its reduction and the payment of the tax thereon the loeaFassessor's cannot be brought in as parties to contest the relator's claim. After a certiorari proceeding, instituted against the State Board of Tax Commissioners, to review its assessment of the special franchise of a gas and electric-company operating in the ci'ty of Rochester, has resulted in a determination, reducing the amount of the assessment, on the ground asserted by the corporation in its petition for the writ of certiorari that the special franchise had been-, assessed at a greater proportionate value than the other property assessed by the local assessors upon the local roll, and after the corporation has paid to the -treasurer of the city of Rochester the reduced tax for which it has be-em adjudged liable, the court has no power,, upon the application of the city of" Rochester and the assessors of that city, to set aside the determination made in the certiorari proceeding, and to make the assessors of the city of Rochester parties to the certiorari proceeding in order to permit them to litigate the claim, of inequality adjudicated therein. Appeal by the relator, the Rochester Gas and Electric Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of July, 1904, opening a judgment herein, entered on the 27th day of June, 1903, and granting the respondents’ application to be made parties defendant in th'e above-entitled action. Upon the lltli day of June, 1903, a writ of certiorari was issued by Mr. Justice Parkhurst of the Supreme Court in behalf of the relator, directed to the State Board of Tax Commissioners, tO' review the assessment of-the relator’s special franchise. The petition had alleged, among other things, that the assessment was unequal in that the property assessed by the local assessors upon the local roll was assessed at only eighty per cent of its real value, while the relator’s franchise was assessed at its full value. This writ was return-, able at a Special Term held by Mr. Justice Herrick upon the 27th day of June, 1903. The corporation counsel of the city of Rochester was given notice of this hearing. Upon the hearing the justice, after taking evidence, found the relator to have been unequally assessed, and reduced the valuation from the sum of $2,197,900 to $1,758,320. Thereafter, and upon the thirtieth day of June, the relator paid to the treasurer of the city of Rochester the sum of $30,539.91, the amount found due upon the hearing upon the writ of certiorari aforesaid. Thereafter, and upon September 11, 1903, the city of Rochester and the assessors of said city made application through the corporation counsel for an order vacating the said order and judgment entered in the proceeding, and authorizing the said city and the said assessors to be made parties defendant to the' proceeding, with authority to defend the same. This application was made upon the affidavit of the mayor of the city, upon information and belief, to the effect that the property was not unequally assessed in that the property assessed by the local assessors was assessed at full value, and that the relator’s property was assessed at no more than a proportionate value. Upon this motion the Special Term made an order to the effect that the said judgment should be vacated and set aside, and that the board of assessors of the city of Rochester be made parties to the proceeding and authorized to raise the issue that the assessment of the relator’s franchise was not at full value, rand at no greater than a proportionate value with the assessment upon the local roll, and to offer such evidence upon such issue as ..they might be advised. From this order.this 'appeal is taken. Albert H. Harris, for the appellant. William W. Webb, for the respondents. [MAJORITY — Smith, J. :] Smith, J. : The determination of the- Special Term upon the writ was made upon notice to the corporation counsel of the city of Rochester. After that determination the relator paid to the city of Rochester the amount specified therein as the amount of tax for which the relator was justly liable. We are of opinion that the Special ’Term should not, after such payment, have set aside that determi"nation and have admitted the respondents into the proceeding to litigate the relator’s claim of inequality of assessment! The order should, therefore, be reversed. All concurred. Order reversed with ten dollars costs and disbursements, and motion denied, with ten dollars costs.