
    The People of the State of New York ex rel. Sylvester W. Del Bello, Respondent, against Joseph J. Lennox, as Commissioner of Assessment and Taxation of the Tax District Comprised of the City of Yonkers, et al., Appellants.
   Respondent did not sustain the burden of showing that the assessment was excessive. The proof adduced justified the assessment as made. (People ex rel. Eisenstein v. McGregor, 270 App. Div. 860; People ex rel. Four Park Ave. Corp. v. Lilly, 265 App. Div. 68, 72.) The determination that the assessment was excessive for the reason that it was a greater amount than in the preceding three years, is not warranted in law. (People ex rel. Hilton v. Fahrenkopf, 279 N. Y. 49, 52; People ex rel. Berkey v. Foley, 243 App. Div. 787, motion for leave to appeal denied 268 N. Y. 727.) Findings of fact numbered third, fourth and fifth, are reversed, and conclusions of law numbered first to sixth, inclusive, in the decision of the Official Referee are disapproved. This court makes the following new finding of fact and conclusions of law: Finding of fact: That the fair and actual market value of relator’s property for the tax year 1948 is, land $5,000, improvements $16,400, total $21,400. Conclusions of law: (1) that the assessment under review in this proceeding is not erroneous by reason of overvaluation; (2) that relator has failed to adduce proof showing that the assessment was not correct; (3) that the assessment as fixed in the assessment roll should be confirmed. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur. Settle order on notice within ten days from the date of this decision.  