
    The People of the State of New York ex rel. Buffalo and Lake Erie Traction Company, Appellant, Respondent, v. The State Board of Tax Commissioners, Respondent, Appellant. Special Franchise Assessment, Town of Westfield, Chautauqua County (1911).
    Fourth Department,
    April 30, 1913.
    Tax—review of assessment of special franchise of railroad company — tangible property — viaduct — pavement between tracks — when assessment not excessive — equalization.
    Upon the assessment by the State Board of Tax Commissioners of special franchises of a traction company, a viaduct may be properly treated as tangible property of the company, but the pavement between the rails and for two feet outside thereof may not be so treated.
    Where upon the review of such assessment by certiorari it appears that after the erroneous valuation of the pavement is deducted, the conceded value of the remaining property of the relator subject to assessment is greater than the amount of the assessment made, the relator has failed to show that it is injured, and, hence, .is not entitled to relief.
    Amount of assessment reduced twenty per cent for equalization.
    Cboss-appeals by the relator, The Buffalo and Lake Erie Traction Company, and the defendant, The State Board of Tax Commissioners, from parts, of an order of. the Supreme Court, made at the Erie Special Term- and entered in the office of the clerk of the county of Chautauqua on the 18th day of June, 1912,. reducing the assessment for taxation upon relator’s special franchise in the town of Westfield, Chautauqua county, from $130,000 to $117,344 as its aggregate actual value, and further reducing it to $93,875.20 to equalize the assessment to the proportionate valuation at which other property in the same district is assessed, and apportioning the assessment between the village of Westfield and the town of Westfield outside of said village.
    
      Kenefick, Cooke, Mitchell & Bass [Edward H. Letchworth of counsel], for the relator.
    
      Thomas Carmody, Attorney-General [C. R. McSparren, Deputy Attorney-General, of counsel], for the defendant.
   Foots, J.:

This is a proceeding by certiorari to review the action of the State Board of Tax Commissioners in assessing special franchises of relator in the town of Westfield, Chautauqua county, in the year 1911. Relator’s special franchises were assessed at the sum of $180,000 as their value. In its petition for the writ of certiorari relator, among other things, alleges that this assessment is erroneous by reason of overvaluation, and that the value of the property does not exceed the sum of $50,212.45. By its return the defendant board denies that the assessment is erroneous by reason of overvaluation, and certifies that the valuation was made in gross, after considering separately as elements in arriving at said valuation both the intangible right or privilege to occupy and use the streets, highways and public places for which the special franchise was granted and the value of the tangible property located therein and used in connection therewith, and “no separate valuations of said intangible right or tangible property were made.”

On the hearing at Special Term no testimony was given, but the parties made and submitted a written stipulation of facts as the basis for the determination of the controversy. Among the facts so agreed to are the following:

1. That the present valúe of relator’s property in the streets on the basis of the cost of reproducing the same new is $179,979.35, including the viaduct and pavement. 2. The present value of the property in the streets, allowing for depreciation, is $152,723.45 including said viaduct, and pavement. 3. That the assessment includes an item of $55,000 tangible property, representing the value of the so-called Westfield viaduct, after deducting the amount contributed toward its construction by the town of Westfield. 4. That the assessment includes an item of $12,656 tangible property, representing the depreciated value of the pavement between’ the tracks of the relator’s railroad and for two feet outside of those tracks, being the pavement which relator is required to have and keep in permanent repair pursuant to section 98 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 676). These provisions are now contained in section 178 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910," chap. 481], as amd. by Laws of 1912, chap. 368).

Attached to the stipulation is the written contract made October 13, 1908, between the town of Westfield, its highway commissioner and relator, providing for the construction of the viaduct in question by relator and the contribution by said town to the expense thereof of the sum of $35,000. From this contract it appears that relator agreed ■ to construct this viaduct at an expense of at least $95,000, to carry'one of the highways of said town across the valley of the Chautauqua creek, and also to carry relator’s railroad, the tracks of which are in this highway..

The Special Term has determined that the viaduct, in which relator has an investment of $55,000, was properly treated by the defendant board as tangible property of relator in the street, but that the pavement between the rails of relator’s railroad track and for two' feet outside those rails, which has a present depreciated value of $12,656, is not tangible property of relator to be included as such in the assessment of its special franchise. ' The reasons for the conclusions so reached are stated in the opinion of Mr. Justice Wheelee upon the decision of the case which is reported in 77 Miscellaneous Reports, 235.

We concur in this opinion as respects the propriety of treating the viaduct as tangible.property of relator, and the impropriety of treating the pavement as such, and we find no occasion to add anything here upon that subject.

It is urged, however, by the learned Attorney-General that if it be conceded that the pavement was not tangible property of relator in the streets to be valued as such in the assessment, but was owned by the municipality, still as the assessment for relator’s special franchise is $130,000 and the stipulated value of relator’s property in the streets, after allowing for depreciation, is $152,723.45, including the viaduct and pavement, a deduction of $12,656, erroneously included for the pavement, leaves the value to be assessed at $140,067.45, or more than $10,000 greater than the assessment, and, hence, that the assessment is, in fact, too low and relator has not been injured.

We think defendant is correct in this contention.

It is incumbent on relator to show affirmatively that the assessment imposed by the State Board was excessive, and that it is entitled to have the amount of the assessment reduced. (People ex rel. Jamaica Water Supply Co. v. Tax Comrs., 196 N. Y. 39; People ex rel. Niagara Falls, etc., Co. v. Tax Comrs., 202 id. 426.) In the case last cited it was found as a fact by the trial court that the valuation of the special franchise of the relator in that case as determined by the State Board at $185,400 was less than the actual value of said franchise, but in valuing the franchise the State Board had included the value of a proportionate part of the water power developed by relator's canal, and although this was held to be erroneous, still the relator in that case was held not entitled to relief because it did not appear that the assessment was excessive as respects the value of relator’s other property, excluding the water power.

The learned justice at Special Term distinguishes that case from the present case, because there is no finding in this case that defendant’s valuation of the special franchise is too low, and that here the parties have stipulated that the assessment as made includes an item of $12,656 for pavement as tangible property. We think these circumstances do not serve to distinguish the two cases. The Board was not justified in the present case in including the value of the pavement in the assessment as tangible property of the relator. In the case cited the Board had improperly included a portion of the value of the water power as part of the special franchise, but after that erroneous item was deducted it still did not appear that the assessment was erroneous in that case, and after the erroneous item of the pavement is deducted in our case the conceded value of the remaining property of relator subject to assessment is greater than the amount of the assessment. Thus relator has failed to show that it is injured by this assessment. On the other hand, it has conceded by the stipulation made that the assessment should have been for at least $140,061.45, or more than $10,000 greater than it is.

We conclude, therefore, that the order appealed from should be reversed and the assessment confirmed, reducing the amount thereof twenty per cent for equalization, with costs of this appeal to the defendant.

All concurred; Kbuse, J., in result only.

Order, so far as appealed from, reversed,'and the assessment, as reduced by twenty per centum for equalization confirmed, with costs to the defendant.  