
    People ex rel. New York Central & Hudson River Railroad Company, Relator, v. William J. Sullivan et al., constituting the State Board of Tax Commissioners, Respondents.
    (Supreme Court, Erie Special Term,
    September, 1912.)
    Certiorari — return to writ of — taxes.
    Where the return to a writ of certiorari to review a determination of the state board of tax commissioners taxing a special franchise of a railroad company clearly indicates an intention to set forth the method of arriving at the value of special franchises, whether the occupation is of a crossing, or of a lengthwise, or diagonal or circular character, and the method described is as applicable to the one as’ to the other, the return is sufficient for all practical purposes; and a motion for an. order directing the board to make and file a further return, on the ground that “ no return has been made with respect to the lengthwise occupations, attempting or purporting to state the modus opermdi of those valuations,” will be denied.
    Motion for an order directing the filing of a further return to a writ of certiorari to review a determination of the state board of tax commissioners.
    Alfred L. Becker, for relator.
    O. B. McSparren, Deputy Attorney General, for respondents.
   Woodward, J.

The relator, the Hew York Central and Hudson Biver Bailroad Company, moves this court for an order directing the respondents to make and file a further return to the writ of certiorari issued in the matter, the contention being that, while the return of the writ describes the method of arriving at the valuation of the street crossings, it fails to state the method by which the valuations of other street occupations, or lengthwise occupations, are arrived at by the respondents. To quote the language of the relator, its position is “ not that the return is inadequate or vague or an insufficient statement of the method of assessment; but rather that it simply does not cover and was not intended to cover the lengthwise occupations. The situation is therefore, practically, that no return has been made with respect to the lengthwise occupations, attempting or purporting to state the modus operandi of those valuations.”

It is conceded that subdivisions numbered I, II and IY might relate to lengthwise as well as crossing occupations, but it is urged that subdivision III is the only part relating to the method of valuation, and that this is confined by its language to “the special franchise herein to cross a street, highway or public place,” etc. This appeals to us as a refinement of reasoning rather than a practical question, for a reading of the return clearly indicates an intention on the part of the respondents to set forth the method of arriving at the valuation of special franchises, whether the occupation is of a crossing or of a lengthwise, or diagonal or circular character, and the method described is as applicable to the one as the other. The statute under which the special franchise taxes are assessed makes no mention of crossings; it merely defines the terms land, real estate and real property as including “ the land itself above and under water, *. * * all surface, underground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways or public places; all railroad structures, substructures and superstructures, tracks and iron thereon; branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground,” etc. It is the occupation of a public street, highway or park place which constitutes the special franchise,. and the street crossings, being the most numerous, it is but natural that the language used should refer to crossings, but it is hardly within the range of practical construction that the references to crossing “ a street, highway or public place ” should he confined strictly to a direct crossing. A public place would be crossed if but one track of the railroad should encroach upon it in any degree, and it will probably be found that, generally speaking, lengthwise occupation results in the crossing of the highway or public place. Taking this view of the use of the word “ crossing,” the return declares “ that in arriving at the intangible element of value of the right or privilege of a railroad to cross a street, highway or public place, the length of the occupancy was also taken into consideration. Crossings from fifty to eighty feet were considered standard, and for crossings of greater or less length ten per cent, of the intangible value of a standard crossing was added thereto or subtracted therefrom for each twenty feet or fractional part thereof.” That is, the length of the occupancy was determined upon the basis of a standard crossing of fifty to eighty feet, and whether that was a direct crossing or a mere occupation lengthwise, or diagonally, was incidental. If it was less than fifty feet of occupation, the valuation was reduced ten per cent, for each twenty feet or fractional part thereof, and, if the occupation was above eighty feet, there was ten per cent, added for each twenty feet or fractional part thereof, the other conditions, on which the valuations of the standard crossing were based, being given due weight as set forth in detail in the return. It is difficult to undérstand how the respondents could have made a more concise and complete return than has been made in the matter now before us for all practicable purposes, and we are not disposed to grant this motion. While People ex rel. New York, Ontario & Western R. Co. v. Woodbury, 204 N. Y. 608, did not discuss this question, it was necessarily involved in the determination, and in the absence of authority may be relied upon to justify the holding here made, if any question can be raised as to the reasoning on which it is based.

The motion is denied, with costs.

Motion denied, with costs.  