
    The People of the State of New York ex rel. Glen Telephone Company, Relator, v. Robert C. Hall, William A. Waner and Levi C. Timmerman, as Assessors of the Town of Canajoharie, Montgomery County, N. Y., Respondents. The People of the State of New York ex rel. Glen Telephone Company, Relator, v. Ephraim Failing, Elfonso Green and Jacob Whyland, as Assessors of the Town of Minden, Montgomery County, N. Y., Respondents.
    (Supreme Court, Fulton Special Term,
    January, 1908.)
    Taxes: Persons, objects and interests taxable — In general — Whether property is real or personal for purposes of taxation — Gas and electrical apparatus: Equalization, correction and review of assessments — Correction and review — Certiorari — Determination and disposition — Re-examination of assessment.
    Where it is shown on grievance day before a town board of assessors that a telephone company possessed no real property in the town, other than that assessed by the State Board of Tax Commissioners and its poles, wires and equipment in the public highway, an assessment against it for real estate in the town is illegal.
    The re-examination of an assessment made by a town board of assessors may be had on certiorari to review, only where the prior examination before the board involved a dispute and a doubt and not where such examination was entirely conclusive, permitting the assessors but one course of action.
    Where the return on certiorari to review an assessment, made by a town board of assessors, shows that a telephone company owned no real estate in the town other than that assessed by the State Board of Tax Commissioners and that all its property real or personal in the town consisted of its poles, wires, etc., and that all the poles, wires and equipments and switchboards and telephone instruments were located on the public highways of the town; and the assessors in their return allege, upon information and belief, that the poles, wires and equipments of the relator were in part erected upon private lands, the assessment for real estate in the town will be stricken from the assessment roll.
    
      Peoceedings by certiorari to review the actions of the boards of assessors of the towns of Minden and Canajoharie, Montgomery county, N. Y., respectively, and to have items of assessment on the assessment rolls of said towns made against the relator for real estate in addition to -the franchise assessment stricken from said rolls.
    The return showed that the relator had appeared before the assessors in said towns on the grievance days and had filed with them verified complaints and petitions relating to said assessments, stating among- other things that the relator did not own any real property in said towns other than that assessed by the State Board of Tax Commissioners and that. all of the property of the relator either real or personal situate in said towns consisted of its “'poles, wires and equipments necessary to transact its business and its switchboards and telephone instruments, and that all of the wires, poles and equipments except the said switchboards and telephone instruments are located on the public highways of said towns.”
    The assessors in their returns alleged, upon information and belief, that all of the wires, poles and equipments of the relator were not erected and maintained upon the public highways and streets of said towns, but were in part upon and over private lands and property therein.
    No evidence was taken or returned by said assessors.
    Fred. Linus Carroll, for relator, Glen Telephone Company.
    N. J. Herrick, for assessors, etc., of town of Canajoharie.
    H. D. Walts, for assessors, etc., of town of Minden.
   Kellogg, J.

Evidence was submitted to the assessors on the part of the relator that it possessed no real property in the tax district except its poles, lines, equipment, etc., in the public highway. The fact so proven is now denied by the return; but, in the proceedings before the assessors, there was no denial thereof raised by the proof. It was conclusively proven, without contradiction before the assessors, that the relator had no such poles and wires and no real estate assessable as such by that board. The assessment, therefore, was arbitrary, capricious and wholly without justification. People v. Barker, 139 N. Y. 55 ; People v. Barker, 141 id. 251; People v. Feitner, 78 App. Div. 313; People ex rel. Brooklyn Union Gas Co. v. Feitner, 82 id. 368.

It is true that the petition and return in certiorari proceedings are regarded as pleadings, and also is it true that a reviewing court may take evidence in addition to that submitted before the assessors and judge the assessment thereby. It is not sufficient, however, that the petition and return themselves raise an issue; they must disclose an issue raised before the assessors. The existence of such an issue at such time, raised by competent and contradictory proof, is an essential condition precedent to an examination do novo by a reviewing court. Such an examination is in amplification of a prior investigation raising an issue. It is no more the prerogative of the assessors first to create an issue before a court sitting in review than it is the privilege of the relator. The re-examination upon review may be had only provided the prior examination involved a dispute and a doubt and not where such examination was entirely conclusive, permitting but one course of action to the assessors. People ex rel. Bhumgara Co. v. Wells, 93 App. Div. 212.

It appears to me, also, that were it true as bow asserted by the return that the relator possessed poles, wires, etc., upon private ground the same was not assessable by them as real estate. ,This case could not then be distinguished in anywise whatever from the case of People v. Feitner, 99 App. Div. 274, the court’s reasoning in which is entirely convincing, though the decision itself may be in conflict with prior authority.

For all these reasons the assessment complained of should be stricken from the roll.

Ordered accordingly.  