
    The People of the State of New York ex rel. The New York Edison Company, Appellant, Respondent, v. James L. Wells and Others, Commissioners of Taxes and Assessments of the City of New York, Respondents, Appellants. (Proceeding No. 6.)
    First Department,
    December 17, 1909.
    Tax — valuation of machinery annexed to realty.
    Old'machinery affixed to a building should be assessed for the purposes of taxation as nearly as possible at its actual value, not at the amount it would cost to replace it with .new machinery.
    
      Cboss-appéals by the relator, The New York Edison Company, and the defendants, James L. Wells and others, commissioners, etc., from an order of the Supreme Court, made at the New. York Special Term and entered in the office of the clerk of the county of New York on the l'9tli day of November, 1908, reducing an assessment for purposes -of taxation-.
    
      Henry J. Hemmens, for the relator.
    
      Hamel JRvmsey, for the defendants.
   Scott, J.:

In this appeal both parties appeal from order reducing and fixing the assessment for the purposes of taxation, for the year 1903,'of the relator’s real estate.

The objections insisted upon by the relator are the same which are considered in proceeding No.. 3 between.the same parties decided herewith (People ex rel. N. Y. Edison Co. v. Wells, No. 3, 135 App. Div. 644), and are disposed of in the opinion rendered in that proceeding. The defendants’ appeal calls in question the valuation placed by the court upon the machinery and fixtures included in the real estate. The plant was not new, and the referee found, and his finding in this respect is not questioned, so far as the figures are concerned, that the original cost of the machinery, etc., was $1,091,822.37; that its replacement-cost on the second Monday of January, 190-3, was $896,054.75, and that its value on the second Monday of January, 1903, was $537,746.22. The court has fixed the assessment at'the latter value, while defendants contend that it should be fixed at the replacement cost. . The finding as to the actual value is based upon estimates, apparently more or less arbitrary, made by the relator’s witnesses, of the depreciation due to use and wear. The "replacement valuéis the result of the estimate of these same witnesses as to what it would cost to replace; with new machinery the partially worn machinery in use when the assessment was made. The evidence as to the present value may not be very satisfactory, and is possibly not precisely accurate, but it is the best there is in the case, and perhaps the best available. We can readily appreciate that the value, for any purpose, and certainly' for purposes of sale, of machinery which has been used for a considerable time must be less than the value of similar machinery when new. The machinery should be assessed as nearly as possible at its actual value, and not' at what its value would be if it were new. There are undoubtedly cases which, owing to peculiar- circumstances, hold that property affixed to the freehold should be assessed at its replacement value, but in our opinion this is not such a case.

The order appealed from is affirmed, without costs to either party in this court.

Ingraham, McLaughlin, LAUGHLiNand Clarke, JJ., concurred. Order affirmed, without costs.  