
    The People of the State of New York ex rel. New York Telephone Company, Appellant, against Rollin Browne et al., Constituting the Tax Commission of the State of New York, Respondents, and City of Buffalo, Intervener, Respondent.
   Relator appeals from an order of a referee in a special franchise assessment certiorari proceeding which denied its request that respondents make a further return to the writ and that the referee, upon the original and further return, render a decision as to whether evidence was necessary to a disposal of the issues. The referee was appointed to hear, try and determine. The pleadings tendered the issues of overvaluation and inequality as to the disposition of which the referee determined evidence was necessary. As to the issue of law which questioned the legality of respondents’ separate valuation of the intangible elements of the special franchise, no motion for judgment on the pleadings was made and no decision upon that issue was properly called for by the requests denied by the order appealed from. The return as ordered added to, fairly complied with the demands of the writ (Tax Law, § 292), and as matters stood when relator’s requests were made the referee properly determined evidence was necessary for a trial and disposition of the issues presented. Order affirmed, with $25 costs and disbursements to respondents. Heffernan, Brewster, Foster and Deyo, JJ., concur; Hill, P. J., dissents and votes to dismiss the appeal on the ground that it is premature. [See post, p. 856.]  