court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.

Source: Tax Law of 1896, Sec. 45, as added by L. 1899, chap. 712, amended L. 1900, ch. 254, L. 1911, ch. 804.

NOTE: (See chapter on Certiorari Proceedings, Part I, supra, for decisions on practice.)

Writ-where granted and where returnable.-In special franchise cases the writ may be allowed by the Special Term or a justice of the Supreme Court in the county where the property affected is situated, but under section 2132 of the Code, must be returnable in the third judicial district at the office of the Albany County Clerk, the county in which the assessment is made by the State Board. People ex rel. N. Y. C. & H. R. R. Co. v. Priest, 169 N. Y. 432; modifying same case in 63 App. Div. 128 as to place of the return.

Defective petition.-Where the petition alleges that the petitioner was not requested to appear before the State Tax Board for further examination, and that said board had no evidence. other than that contained in its report, as the petitioner was informed and believed, and that no evidence other than the report was known to the board or considered by it, and that the evidence presented by the petition was not denied and was accepted by the board, but stating no grounds of the petitioner's belief or its sources of information, the allegations are without probative force. People ex rel. H. & M. R. R. Co. v. Tax Comm'rs, 143 App. Div. 26; reversed on other points in 203 N. Y. 120. Where the petition fails to state the extent of the alleged over-valuation, it is defective under section 290 of the Tax Law. But a return to the writ and the submission of the issues on the merits has the effect of waiving the defect. People ex rel. N. Y. & R. B. R. Co. v. Tax Com'rs, 79 Misc. 135.

When right to review is lost.-Where the report required by Section 44 of the Tax Law has not been filed before the final assessment of a special franchise has been made, the right to review by certiorari that particular assessment is lost. People ex rel. N. Y. & Queens Co. R. R. Co. v. Tax Comm❜rs, 55 App. Div. 218.

When right to review is not lost.-In the case of an assessment made without jurisdiction, the omission to file written objection on the day fixed by village assessors for hearing complaints, pursuant to section 36 of the Tax Law, does not impair the right of the person or corporation assessed to review the assessment by writ of certiorari. People ex rel. N. Y. C. & H. R. R. Co. v. Keno, et al, 61 Misc. 345.

Return. The return should disclose the modus operandi by which the commissioners made their assessment, as the Tax Law distinctly provides that the return should contain "the grounds for the valuation." People ex rel. Buffalo Gas Co. v. Tax Comm'rs, 199 N. Y. 162; aff'g 137 App. Div. 358; People ex rel. Lehigh V. R. Co. v. Woodbury, 199 N. Y. 167; People ex rel. Hudson & M. R. R. Co. v. Tax Comm'rs, 142 App. Div. 220. These cases overrule earlier cases to the contrary, holding that the method of valuation need not be disclosed.

Where the return does not disclose the grounds for the valuation, the relator should move for an amended or additional return, which should comply with section 292 of the Tax Law. People ex rel. Hudson & M. R. R. Co. v. Tax Comm'rs, 142 App. Div. 220; People ex rel. Hudson & M. R. R. Co. v. Tax Comm'rs, 143 App. Div. 26; reversed on other grounds, 203 N. Y. 120; People ex rel. Buffalo Gas Co. v. Tax Comm❜rs, 137 App. Div. 358.

Burden of relator.-The relator must sustain the burden of showing that the method of computation for valuing the in

tangible property is wrong, or that, if a proper method was employed, it was erroneously applied. People ex rel. N. Y. C. R. R. v. Priest, 150 App. Div. 19; Jamaica W. S. Co. v. Tax Comm'rs, 196 N. Y. 39; People ex rel. Niagara Falls Hydraulic Power Co. v. Tax Comm'rs, 202 N. Y. 426; People ex rel. Hudson & M. R. R. Co. v. Tax Comm'rs, 142 App. Div. 220; reversed on other grounds, 203 N. Y. 120; People ex rel. N. Y. C. & H. R. R. Co. v. Priest, 150 App. Div. 19. The relator must show affirmatively that the assessment complained of was excessive and that the circumstances warrant a reduction of the assessment. People ex rel. Jamaica W. S. Co. v. Comm'rs, 196 N. Y. 39; People ex rel. Niagara Falls, etc. Co. v. Comm'rs, 202 N. Y. 426; People ex rel. Buffalo & Lake Erie T. Co. v. Comm'rs, 156 App. Div. 466.

Re-valuation through certiorari.-In a certiorari proceeding under the Tax Law, the court is authorized to take further proof in order to try to determine the proper valuation of the property assessed and hence the proceeding practically involves a re-valuation of the property. People ex rel. Jamaica W. S. Co. v. Tax Comm'rs, 196 N. Y. 39.

Local assessors cannot intervene.-The writ to the state board cannot be amended, so as to run to the local assessors. An application for intervention in a certiorari proceeding must show some legal interest in the controversy. People ex rel. Rochester Tel. Co. v. Priest, 181 N. Y. 300; reversing 101 'App. Div. 223. To same effect are People ex rel. Buffalo R. Co. v. Priest, 101 App. Div. 263.

Over-valuation.- In certiorari proceedings to review taxes, it is incumbent upon the relator to show affirmatively that the assessment imposed is excessive where the relief asked is upon the ground of excessive valuation. People ex rel. Niagara Falls

Hydraulic Power & Mfg. Co. v. State Board of Tax Comm'rs, 202 N. Y. 426. Where the return to a writ of certiorari based upon a claim of overvaluation fails to disclose the method used by the state board in reaching the valuation, the issue as to over-valuation is one of fact to be determined from the evidence presented. People ex rel. Queens County Water Co. v. State Board of Tax Comm'rs, 67 Misc. 490. The relation of certain similar assessments by a relator and a showing that its particular franchise under review is assessed at a higher valuation than those selected is insufficient. It must be shown that unless the assessment was reduced, the relator would be obliged to pay more than its proportionate share of the taxes. People ex rel. Hudson & Manhattan R. R. Co. v. State Board of Tax Comm'rs, 143 App. Div. 26; reversed on another point, 203 N. Y. 119. If the total valuation of the relator's property be correct, no ground of complaint exists against the tax commissioners if they overvalued one portion of the relator's special franchise. People ex rel. Niagara Falls Hydraulic Power Mfg. Co. v. The State Board of Tax Comm'rs, 65 Misc. 213; aff'd 202 N. Y. 426.

Assessment must be sustained unless it could not be upon any possible theory of valuation.-It is not only to be presumed that an assessment is valid, but it must be sustained unless the relator has shown on the hearing that it cannot be sustained on any theory or rule of valuation which the assessors might lawfully have adopted or applied, and if the evidence leaves the matter in doubt, then it is the province of the assessing officers to determine the value and their determination cannot be disturbed. People ex rel. Hudson & Manhattan R. R. Co. v. State Board, 143 App. Div. 26; reversed on another point, 203 N. Y.

119.

State Board of Tax Commissioners assumed to assess at full value.-It will be assumed that the State Board of Tax

Commissioners has assessed the special franchise of the relator including the tangible property at its full value. It is their duty so to assess it and the court will not find, without evidence, that they violated their duty. People ex rel. Queens Borough Gas & Electric Co. v. Woodbury, 67 Misc. 481; People ex rel. Hudson & M. R. R. Co. v. State Board, 143 App. Div. 26; reversed on another point, 203 N. Y. 119.

Tax Law, Art. II, Sec. 46a.-Special franchise valuations made prior to passage of ch. 804, L. 1911, not affected by that statute.— Nothing in the tax law as amended by Chapter eight hundred and four of the laws of nineteen hundred and eleven contained shall require the making and filing of new or further valuations of special franchises in cities, towns, or villages for which valuations have already been made and certified for the year nineteen hundred and eleven, nor affect in any manner the special franchise valuations made and certified to cities before this act takes effect, in accordance with the schedule of dates of certification set forth in section forty-three of the tax law before the same was amended by chapter eight hundred and four of the laws of nineteen hundred and eleven and when the assessment-roll of any city of this state for the year nineteen hundred and twelve shall be required by the charter of such city, to be finally completed, verified and filed on or before the fifteenth day of December, nineteen hundred and eleven, the assessors or other officer or officers whose duty it is to make local assessments for said city, shall, before the final completion, verification and filing of said assessment-roll, enter in the proper column of the assessment-roll, the valuations of the special franchises subject to assessment, in such city which were certified to the city clerk of such city in accordance with the schedule of dates of certification set forth in section forty-three of the tax law before said amendment of nineteen hundred and eleven, with the same force and effect as if said valuations had been made as provided by sections forty-three, forty-five and forty-five-a, of the tax law as amended by chapter eight hundred and four of the laws of nineteen hundred and eleven, and such assessments may be reviewed in the manner prescribed by article thirteen of this chapter, and that article applies so far as practicable to such assessments in the same manner and with the same force and effect as if the assessment had been made by local assessors; a petition for a writ of certiorari to review the assessment of such special franchises in such city must be presented within fifteen days after the final completion and filing of such assessment-roll. Such writ must run to and be answered by said state