
    The People ex rel. Rochester Railroad Co., Relator, v. George E. Priest et al., The State Board of Tax Commissioners, Defendants. The People ex rel. Rochester Gas and Electric Co., Relator, v. George E. Priest et al., The State Board of Tax Commissioners, Defendants.
    (Supreme Court., Albany Special Term,
    November, 1903.)
    Reduction, on certiorari, of assessments of special franchises, in a city, for inequality — The city permitted to intervene where it had not been made a party and contested the inequality — Res adjudicata — City assessors when entitled to be heard — Authority for making the city a party.
    Where certain corporations of a city took proceedings by certiorari, against the State Board of Tax Commissioners alone, to procure reduction of the assessed valuations of their special franchises and, upon their proof that their franchises had been assessed at their full value while city real estate was assessed at only seventy per cent of full value, a justice of the Supreme Court reduced the assessments for inequality and corrected them on the roll, the same justice, upon prompt application of the mayor of the city and his affidavit upon information and belief that city real estate was assessed at its full value and that the said special franchises had not been so assessed by the State Board of Tax Commissioners and also upon proof that the city had not appeared in the proceedings, set aside the orders and judgments he had granted and permitted the city to intervene and contest the alleged inequality.
    It was further held that the said orders and judgments were no bar to the city as it was not a party to them.
    That while the proceedings of the State Board had not, in reality, been reviewed because it was assumed by the court that they had done their duty and assessed the special franchises at their full value, the proceedings of the city assessors, who had not been heard, had, in effect, been reviewed since it had been charged by the corporations and had been adjudged by the court that the city assessors had not done their duty and had assessed other property at seventy per cent, of its full value.
    That the city and its assessors were entitled to be parties and should and could have been made so under L. 1900, ch. 254, § 2, providing that no writ of certiorari to renew any assessment of a special franchise should run to any other board or officer than the State Board of Tax Commissioners “ unless. otherwise directed by the court or judge granting the writ.”
    On the 27th day of June, 1903, an order was made at the Albany Special Term reducing the assessment of the Rochester Railway Company from the sum of two millions, thirty-nine thousand, eight hundred and forty dollars ($2,039,840) to the sum of one million, six hundred and thirty-one thousand, eight hundred and seventy-two dollars ($1,631,872) and on the same day an order was made reducing the assessment of the Rochester Gas and Electric Company from the sum of two millions, one hundred and ninety-seven thousand, nine hundred dollars ($2,197,900) to the sum of one million, seven hundred and fifty-eight thousand, two hundred and twenty dollars ($1,758,220).
    These orders were made for the purpose of correcting the assessment-rolls and bringing about an equality of assessment between the properties of such companies, and the real estate of the city of Rochester, which was alleged to be assessed at eighty per cent, of its value. Similar orders appear to have been made in the years 1901 and 1902.
    It would appear that prior to the entry of the orders of June 27, 1903, the corporation counsel of the city of Rochester was communicated with by the Attorney-General to see if the city of Rochester desired to take any action in the matter; it also appears that the corporation counsel concluded that the city of Rochester could do nothing in the premises, and such orders were entered without any appearance by or on behalf of said city.
    On the 18th day of July, 1903, the mayor of said city directed the corporation counsel to take proceedings to have such orders and the judgments entered thereon vacated, and the city of Rochester permitted to be heard, and an application is now made to this court by such city through its mayor and corporation counsel for an order to vacate the above described orders and the judgments entered thereon, and that the city of Rochester be permitted to be heard.
    
      William A. Sutherland, Corporation Counsel, for city of Rochester, for motion.
    Charles J. Bissell, counsel for Rochester Railway Company.
    Harris & Harris, attorneys for Rochester Gas and Electric Company.
   Herrick, J.

Erom the correspondence submitted to me upon this application, it would appear that notice of the proceedings to reduce the assessments of the relators was given by the Attorney-General to the corporation counsel of the city of Rochester, ¿nd that the corporation counsel was then under the impression that nothing could be done by the city in the premises. ■

The mayor, however, seems to have arrived at a different conclusion, and speaking for the city asks an opportunity for it to be heard. With the suggestions that have been made as to why the mayor has taken the attitude that he has, the court can have nothing to do, and will give them no weight. Under the charter of cities of the second class, to which Rochester belongs, the mayor is peculiarly the representative of the city, and the guardian of its rights and interests, and courts are bound to assume that his official actions are taken in good faith.

The question as to whether the real estate of the city of Rochester is, or is not, assessed at its full value, or as to whether the tax commissioners have, or have not, assessed the property of the corporations at their full value, cannot be determined by me upon this application. As to the first, the mayor of the city who should have means of knowledge of the facts swears that the real estate of the city of Rochester is assessed at its full value — it is true that that statement is made upon information and belief — but the sources of information at the hands of the mayor are such that more force and effect should be given to such an allegation, than is ordinarily given to statements upon information and belief.

I have heretofore had occasion to consider applications to vacate and set aside orders and judgments rendered under similar circumstances, and permitting the city interested to intervene. In the case of People ex rel. Buffalo Railway Company v. Board of Tax Commissioners, and People ex rel. Cross-Town Railway Company of Buffalo v. Board of Tax Commissioners, a memoranda was written by me giving my reason^ for granting the applications in those cases. Such memoranda has not been published, and a copy thereof is appended hereto, as it seems to me that the same reasons for granting the applications in those cases applies to the applica; tion now under consideration, and lead to the same decision being made.

The application of the city of Rochester is granted, and orders and judgments set aside, with leave to the city of Rochester to intervene and be heard upon the application of the relators for a reduction of their assessments.

If the orders to be entered cannot be agreed upon, they may be settled before me, at my chambers, in the city of Albany, upon any Saturday.

Ordered accordingly.  