when he should have charged overvaluation where no motion was made to quash the writ on that ground. People ex rel. Gleason v. Purdy (1918), 223 N. Y. 88.

The fact that an order directing a return to a writ of certiorari requires the defendant to do more than is necessary does not justify an appeal; the matter may be remedied by a motion for a resettlement of the order. People ex rel. Long Island R. R. Co. v. Wolf (1912), 152 App. Div. 173, 136 N. Y. Supp. 465.

ARTICLE IX.

REFUND OF TAX UPON ILLEGAL, ERRONEOUS OR UNEQUAL ASSESSMENT.

(Fiero, Spec. Pro., 3rd Ed., pp. 1932-1934.)

TAX LAW, § 296. Refund of tax upon illegal, erroneous or unequal assessment. Tax Law, § 296. Refund of tax paid upon illegal, erroneous or unequal assessment.

If in a final order in any such proceeding it has been or shall be ordered or adjudged or determined that the assessment complained of was illegal, erroneous or unequal, and correcting or directing correction thereof, and such order shall not be made in time to enable the assessors or other officers to make a new or corrected assessment for the use of the board of supervisors or for the use of the town, village, city, school or special district officers levying any tax upon such property, the assessment of which has been or shall be so ordered or adjudged or determined to be illegal, erroneous or unequal, then any tax collected or to be collected upon such illegal, erroneous or unequal assessment shall be refunded as follows:

1. When such tax upon such illegal, erroneous or unequal assessment shall have been levied by the board of supervisors, then at an annual session of the board of supervisors held after the order for such correction has been granted and entered there shall be audited and allowed to the petitioner or other person who shall have paid such tax, and included in the tax levy of the town, village, city or special district in which the property is situated, made next after the entry of such order, and paid to the petitioner, or other person paying the tax, the amount paid by him, in excess of what the tax would have been if the assessment had been made as ordered, adjudged or determined by such order of the court, together with the interest thereon from the date of payment. In case the amount deducted from such assessment by such order exceeds ten thousand dollars, so much of the tax as shall be refunded by reason of such corrected assessment, other than the proportion or percentage thereof collected for such town, village, city or special district purposes, shall be levied upon the county at large and paid with interest, to the petitioner or other person paying the tax without further audit; and the board of supervisors shall audit and levy upon such town, village, city or special district, the proportion or percentage of such excess of tax collected for such town, village, city or special district purposes, which shall be collected and paid with interest to the petitioner, or other person paying the tax, without other or further audit.

2. When a tax, or any part thereof upon such illegal, erroneous or unequal assessment shall have been levied by the proper officers of any city or village, solely for the benefit and purposes of such city or village, then the common council or other auditing officer or officers of such city or village shall immediately after such correction audit and allow, to the petitioner or other person who shall have paid such tax, or the part thereof levied solely for the benefit and purposes of such city or village, and include in the tax levy of such city or village in which the property is situated made next after the entry of such order and cause to be paid to such petitioner or other person paying such tax, or the part thereof levied solely for the benefit and purposes of such city or village, the amount paid by him in excess of what the tax or the part thereof levied solely for the benefit and purposes of such city or village, would have been if the assessment had been as ordered, adjudged or determined by such order of the court, together with interest thereon from the date of the payment.

3. When a tax shall have been levied and collected in any school district of this state upon any property within such district on any assessment value thereof which shall have been ascertained from a town assessment-roll and which assessment upon such town roll shall have been ordered, adjudged or determined by order of the court as aforesaid to have been illegal, erroneous or unequal and which assessment though made by town assessors was adopted and was used in such district for the purpose of taxation for school purposes, then and in such case the trustees of such school district shall audit and allow and cause to be paid to the petitioner, or other person who shall have paid such tax, the amount paid by him in excess of what the school tax would have been in such case if the assessment had been made as ordered, adjudged or determined by such order of the court together with interest thereon from the date of the payment.

Application to the proper officer for the audit and allowance of such moneys must be made by the petitioner or other person paying such tax within three years after the entry of the final order ordering or adjudging or determining such assessment to have been illegal, erroneous or unequal; provided that the time of the pendency of any appeal in any such proceeding or from any such order shall not be deemed any part of such three years. Amended by L. 1915, ch. 470, and L. 1916, ch. 323. (B., C. & G. Consol. L., 2nd Ed., p. 8642.)

TAX LAW, $ 46.

ARTICLE X.

ASSESSMENT OF SPECIAL FRANCHISES.

(Fiero, Spec. Pro., 3rd Ed., pp. 1934-1953.)

Certiorari to review assessment.

§ 293. Proceedings upon return.

§ 293-a. Special proceedings concerning special franchise tax assess

ments.

SUBD. 1. Special franchises defined.

3. The return.

4. Matters of practice.

5. The statute, how construed and applied.

6. The net earnings rule.

Tax Law, § 46. Certiorari to review assessment.

An assessment of a special franchise by the tax commission may be reviewed in the manner prescribed by article thirteen of this chapter, and that article applies so far as practicable to such an assessment, 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 must be presented within thirty days after the final completion and filing of the assessment-roll, and the first posting or publication of the notice thereof as required by law. Such writ must run to and be answered by said tax commission and no writ of certiorari to review any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. In cities a copy of said writ and the petition for same shall be furnished to the corporation counsel or other law officer. 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 the taxes levied upon said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.

Amended by L. 1916, ch. 334; L. 1918, ch. 278. (B., C. & G. Consol. L., 2nd Ed., p. 8366.)

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 proceedings 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. 1916, ch. 323.

Tax Law, § 293-a. Special proceedings concerning special franchise tax assess

ments.

When the writ is obtained to review a special franchise assessment made pursuant to the provisions of article two of this chapter, upon the filing of the return to the writ the court may take such evidence as it may deem necessary, or may appoint a referee to take evidence and to hear, try and determine all questions raised by the petition and the return thereto and to make his findings and determinations therein, or, on motion of either party,

the court may direct the place of trial changed to the county in which the special franchise under review is situated, and on an order duly entered granting such motion, the place of trial shall be deemed changed to the county designated and the papers and proceedings shall be certified to that county in the manner now provided by law in the case of a change in the place of trial of an action and all subsequent proceedings shall be had in the county so designated, as if the special proceedings had been originally instituted in that county, and the court may, upon the application of the attorney-general, upon cause shown, vacate any reference heretofore made in any proceeding instituted to review a special franchise assessment, made pursuant to the provisions of article two of this chapter. The governor may, upon the application of the attorney-general, upon cause shown, appoint extraordinary terms of the supreme court to be held in any judicial district and designate a justice to preside thereat, to try such special franchise cases. Such extraordinary term shall have jurisdiction over all special franchise cases arising in any tax district within the judicial district for which the term is appointed, without regard to the county in which the term is being held, and either party to a proceeding to review a special franchise assessment may at any time bring the proceeding on for a hearing or trial before said extraordinary term by serving upon the other party sixteen days' notice thereof by mail or fourteen days' notice personally. A new assessment or correction of an assessment made by order of the court shall have the same force and effect as if it had been so made by the proper officers within the time prescribed by law for making such assessment.

Added by L. 1916, ch. 323. (B., C. & G. Consol. L., 2nd Ed., p. 8638.)

Subd. 1. Special Franchises Defined.

(Fiero, Spec. Pro., 3rd Ed., pp. 1936-1938.)

A special franchise, so far as railroads are concerned, is the right or permission to construct, maintain and operate the same in, under, above, on or through streets, highways or public places. People ex rel. R. R. Co. v. Tax Comrs. (1911), 203 N. Y. 119.

A grant by a city to a railroad company of the right to occupy and use certain subsurface property therein described on condition that no fee should be created in the soil is a special franchise. People ex rel. New York Central R. Co. v. Woodbury (1912), 206 N. Y. 304.

The object in assessing a special franchise tax is not necessarily to produce a tax upon the intangible rights of the corporation, but to determine what the special franchise is worth. If the basis of the computation be right it is immaterial whether a tax on the intangible part of the franchise results or not. People ex rel. Brooklyn H. R. R. Co. v. Tax Comrs. (1911), 146 App. Div. 372, 131 N. Y. Supp. 49, affd., 204 N. Y. 648.

A special franchise involves a grant from competent public au

thority, and there can be no franchise if an act is done within the boundaries of a street "by virtue of the ownership of the suit or some interest therein." Hence, where a railroad company, after a city opens a street and builds a bridge over its tracks acquiring a mere easement for street purposes, acquires additional lands adjacent to its right of way, and uses it for switch tracks underneath the bridge, it should not be assessed as a special franchise. People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury (1915), 167 App. Div. 428, 153 N. Y. Supp. 537, affd., 218 N. Y. 21 (Mem.).

Though the State may tax the right to maintain that portion of the Suspension Bridge across the Niagara river at Niagara Falls which extends from the easterly margin of the river to the center thereof, such right is not within the definition of a "special franchise." People ex rel. N. F. Int. Bridge Co. v. Tax Comm. (1918), 103 Misc. 648.

The canal lands owned by the State are a "public place within the meaning of the Tax Law and the crossing of said lands by the tracks of a railroad is a special franchise and taxable as such. People ex rel. R., S. & E. R. R. Co. v. Moroney (1918), 224 N. Y. 114, revg., 176 App. Div. 901.

Subd. 3. The Return.

(Fiero, Spec. Pro., 3rd Ed., pp. 1939-1941.)

Where, after a hearing by the State Tax Commission and the determination of valuations, the assessed valuations are increased, and the relators raise as a question of law the legality of such increase, they are entitled to a return which will specifically allege under what law the State Tax Commission acted, and the modus operandi by which the valuation was increased, and the notices and hearings, if any, allowed the relators thereon. People ex rel. Dry Dock, E. B. & B. R. Co. v. State Tax Commission (1917), 164 N. Y. Supp. 772.

Where the return to a writ of certiorari to review a determination of the State Board of Tax Commissioners taxing a special franchise of a railroad company clearly indicates an intention to set forth the method of arriving at the value of the special franchises, whether the occupation is of a crossing, or of a lengthwise, or diagonal or circular character, and the method described is as