in not deducting from the taxable assets a certain sum for surplus. People ex rel. McClure Publications, Inc. v. Purdy (1914), 161 App. Div. 541, 146 N. Y. Supp. 646, affd., 213 N. Y. 658.

ARTICLE IV.

THE RETURN.

(Fiero, Spec. Pro., 3rd Ed., pp. 1904-1907.)

The officers making a return to a writ of certiorari are required under the Tax Law to procure certified or sworn copies of the assessment roll or papers, or of such portions thereof as may be called for by the writ, without any reference to fees or other compensation. People ex rel. Long Island R. R. Co. v. Wolf (1912), 152 App. Div. 173, 136 N. Y. Supp. 465.

Upon the demand of a relator accompanied by the tender of the fees as prescribed by law, it is the duty of the State Board of Tax Commissioners to furnish sworn or certified copies of the papers incorporated into a return by reference. It is discretionary with the State Board of Tax Commissioners to permit inspection of its records with the privilege of making copies of the same. Rept. of Atty. Genl. (1912), 406.

A writ of certiorari to review the action of the assessors and the city clerk of a city in laying assessments for street improvements brings up for review only the proceedings of the assessors and clerk and not the proceedings of other boards and officers on which their jurisdiction to act depended, as to which they cannot be required to make return. People ex rel. Bulger v. Hart (1912), 75 Misc. 137, 132 N. Y. Supp. 827, affd., 152 App. Div. 901, 136 N. Y. Supp. 1144.

A certiorari proceeding under section 906 of the New York charter to review the final determination of the Tax Board in making an assessment is a remedy independent from an ordinary proceeding by certiorari and the return is not conclusive upon questions of fact stated therein, but both it and the petition are to be regarded simply as pleadings. People ex rel. Brooklyn Development Co. v. Purdy (1916), 96 Misc. 10, 159 N. Y. Supp. 778, affd., 177 App. Div. 936, 164 N. Y. Supp. 1107.

ARTICLE V.

PROCEEDINGS ON THE RETURN.

(Fiero, Spec. Pro., 3rd Ed., pp. 1907-1922.)

TAX LAW, § 293. Proceedings upon return.

SUBD. 1. Nature and extent of review by the court.

2. Extent of review of acts of assessors.

3. Inequality as a basis for relief.

4. When and how evidence is taken.

Tax Law, § 293. Proceedings upon return.

If it shall appear upon the return to any such writ that the assessment complained of is illegal or erroneous or unequal for any of the reasons alleged in the petition, the court may order such assessment, if illegal, to be stricken from the roll, or if erroneous or unequal, it may order a reassessment of the property of the petitioner, or the correction of the assessment upon the roll, in whole or in part, in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments of other property upon the same roll and secure equality of assessment. If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or may appoint a referee to take such evidence as it may direct, and report the same to the court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. Upon such hearing the parties to the proceeding may mutually agree upon the number of pieces of property to be valued and the number of witnesses to be sworn on the subject of the value of such properties. But in case the parties fail to so agree, then upon application of either party the court shall determine the number of witnesses to be sworn and the number of the pieces of property to be valued and shall limit the same to such number as the court shall deem reasonable.

Amended by L. 1909, ch. 330, L. 1911, ch. 302, and L. 1916, ch. 323. (B., C. & G. Consol. L., 2nd Ed., p. 8635.)

Subd. 1. Nature and Extent of the Review by the Court.

(Fiero, Spec. Pro., 3rd Ed., pp. 1907-1910.)

The Appellate Division will not make a final determination as to value where upon a new trial different facts may appear. People ex rel. N. Y. C. & H. R. R. R. Co. v. Hanking (1912), 152 App. Div. 488, 137 N. Y. Supp. 365.

In cities where the assessors are required to put down separately the value of the land exclusive of the value of the buildings and the value of the land and buildings there cannot be a review of the assessment merely on a showing that the value placed on the land alone is excessive. People ex rel. Boskowitz v. Purdy (1915), 167 N. Y. Supp. 68.

Where upon certiorari to review the assessment of the property of a railway company situated in a village, it appears from the petition and return that the village having been incorporated the preceding year the assessors adopted the assessment of the last preceding year of the town in which the village is located as far as practicable, that the assessors had jurisdiction of both the relator and of its property and that no claim was made that the village was not legally incorporated, or that the assessment was not duly made, the assessment cannot be held to be illegal, and hence the court cannot order the assessment stricken from the roll, but may correct the present assessment, in case the proofs taken by the court require it. Matter of New York, Ontario & Western R. Co. (1913), 155 App. Div. 866, 140 N. Y. Supp. 678.

Subd. 2. Extent of Review of Acts of Assessors.

(Fiero, Spec. Pro., 3rd Ed., pp. 1910-1916.)

Objections not specifically pointed out to the assessors on grievance day are not available for review in certiorari proceedings. People ex rel. Powdered Milk Co. v. Rowe (1916), 161 N. Y. Supp. 1064.

Subd. 3. Inequality as a Basis for Relief.

(Fiero, Spec. Pro., 3rd Ed., pp. 1916-1919.)

In People ex rel. United Wood Alcohol Co. v. Sheldon (1911), 148 App. Div. 400, 132 N. Y. Supp. 804, the evidence was examined, and it was held, that a judgment reducing the assessment on the relator's real property based upon a finding that such property was assessed proportionately higher than other property in the same class should be reversed.

It seems, that the cost of a manufacturing plant in connection with the price for which it is leased is entitled to more weight than mere opinions as to market value. People ex rel. United Wood Alcohol Co. v. Sheldon (1911), 148 App. Div. 400, 132 N. Y. Supp. 804.

The relator cannot raise the issue of inequality where he fails to make a statement of specific instances of inequality in his application to the commissioners as well as in the petition. People ex rel. American Mfg. Co. v. Commissioners of Taxes and Assessments (1918), 104 Misc. 703.

Subd. 4. When and How Evidence Is Taken.

(Fiero, Spec. Pro., 3rd Ed., pp. 1920-1922.)

Where there is a reference ordered, a stipulation of parties that the referee "may make such examination of the relator's property as he desires" does not confer upon him the power to substitute his own opinions for the facts established by the parties, even after a view of the property. People ex rel. N. Y. C. & H. R. R. R. Co. v. Hanking (1912), 152 App. Div. 488, 137 N. Y. Supp. 365.

ARTICLE VI.

MISCELLANEOUS DECISIONS AND MATTERS OF PRACTICE.

(Fiero, Spec. Pro., 3rd Ed., pp. 1922-1927.)

A proceeding for a review of assessments by certiorari is statutory and technical and in order to avail of the statute persons aggrieved must conform to its requirements in matters of procedure. People ex rel. Soeurbee, Inc. v. Purdy (1917), 179 App. Div. 748, 167 N. Y. Supp. 91.

The court, in its discretion, has the power, in a tax case, as in other cases of certiorari, to bring in a new party. People ex rel. N. Y. C. R. R. Co. v. Block (1917), 178 App. Div. 251, 164 N. Y. Supp. 962.

The burden of proof rests upon the party assailing the assessment to establish affirmatively its alleged inequality or excessive People ex rel. Brooklyn Development Co. v. Purdy (1916), 96 Misc. 10, 159 N. Y. Supp. 778, affd., 177 App. Div. 936, 164 N. Y. Supp. 1107.

ness.

Where property is added to the assessment roll after the first day of August, the date at which town assessors are required to complete the assessment roll, no application to the assessors to correct the assessment, as required by section 290 of the Tax Law, is necessary as a prerequisite to a writ of certiorari to review the assessment. People ex rel. Suburban Invest. Co. v. Miller (1911), 73 Misc. 214, 131 N. Y. Supp. 868.

Certiorari to review an assessment obtained for a taxpayer by a corporation should not be dismissed on the ground that the corporation was prohibited from practicing law. People ex rel. Floersheimer v. Purdy (1917), 221 N. Y. 481.

ARTICLE VII.

COSTS.

(Fiero, Spec. Pro., 3rd Ed., pp. 1927-1929.)

Where the proofs do not disclose that the assessors acted with gross negligence or in bad faith or with malice in making the assessment, but acted in pursuance of the advice of the State Board of Tax Commissioners no costs should be awarded the relator. People ex rel. City of Oswego v. Board of Assessors of Town of Oswego (1911), 134 N. Y. Supp. 177.

That part of section 294 of the Tax Law which provides that on certiorari to review an assessment, costs shall be awarded against the petitioner if the reduction thereby obtained is less than half the assessment, is mandatory. People ex rel. Loomis v. Purdy (1915), 167 App. Div. 857, 153 N. Y. Supp. 793.

A railroad company reviewing the assessment of a special franchise tax by certiorari is not entitled to costs where the assessment was not found by the Special Term, and is not found by the Appellate Division to be excessive by one-half the amount claimed by the relator. People ex rel. Third Ave. R. R. Co. v. Tax Comrs. (1913), 157 App. Div. 731, 142 N. Y. Supp. 986, affd., 212 N. Y. 472.

Where a corporation appears before the State Tax Commission and claims that the valuation of its special franchise at $110,000 is erroneous and should be entirely cancelled or else reduced to a nominal sum, and it is reduced to $90,000, but by a writ of certiorari subsequently obtained, it is reduced to $47,513, costs and disbursements should be allowed the corporation as the reduction is more than half the amount claimed before the assessing officers. People ex rel. N. Y. M. & M. T. Co. v. Tax Comrs. (1913), 157 App. Div. 686, 142 N. Y. Supp. 758, affd., 210 N. Y. 623.

ARTICLE VIII.

APPEALS.

(Fiero, Spec. Pro., 3rd Ed., pp. 1929-1932.)

A writ of certiorari to review an assessment should not be quashed upon appeal merely because the relator charged illegality