The relator claims that the action of the commissioners in fixing the assessment, so far as the same relates to his real estate, is erroneous, (1) by reason of overvaluation, and (2) inequality, in that the assessment was made at a higher proportionate valuation than the assessment of other real estate on the same tax roll for the same time. Many instances in which such alleged inequality exists, and the extent thereof, are set out in the petition or in the schedule annexed to and made a part of it.
The counsel for the appellants insists that the writ should have been quashed, inasmuch as it does not appear from the petition upon which the same was granted that the assessment placed upon the relator’s real estate was in excess of its market value, and that no facts are stated tending to show inequality. In this connection our attention is called to two decisions of this court, which are claimed to be in conflict, and in reference to which it is said, to use the language contained in the appéllant’s brief, “ The most important question presented for determination on this appeal is whether the law as enunciated in the proceeding brought by the Bronx Gas and Electric Company vs. Barker, * 43 App. Div. Rep. p. 198, is limited only to the facts appearing in the record in that proceeding, or whether the law as announced by this Court in the proceeding brought by John S. Sutphen vs. Feitner, 45 App. Div. p. 542, is of general application and not restricted to the special facts in the Sutphen proceeding.” There is no conflict between the two decisions. On the contrary, in the Sutphen case, the justice delivering the prevailing opinion took occasion to say that “ What was held in the Bronx Gas Company case we adhere to.” The petition in the case at bar brings the case squarely within the rule laid down in People ex rel. Bronx Gas Co. v. Feitner (supra), and requires that the court should take, or appoint a referee to take, testimony bearing upon the issues involved to the end that a determination might be made upon the merits.
It appears from the petition that the assessment complained of is erroneous by reason of overvaluation, and also by reason of inequality in that it was made at a higher proportionate valuation than the assessment of _ other real estate on the same tax roll, made *158by the same officers and for the same year, many instances of which and the extent thereof are set out in the petition or in the schedule annexed to and made a part of it, and that the relator took the necessary proceedings before the tax commissioners to have the error corrected, but his efforts in that direction were unavailing.
The petition also contains specific allegations showing inequality in the assessment, and in this connection alleges that the relator’s-real estate was assessed in 1898 at $1,500,000, and in 1899 at $2,500,000, or an increase of sixty-six and two-thirds per . cent; that in 1898 the total assessed valuation of all the real estate in the city of New York was $2,528,533,441, and in the year 1899 it was-$2,932,445,464, an .increase of $403,912,023, or fifteen and nine-tenths pér cent, “ such increase being over 318 per centum less, than the percentage of increase in. the assessed valuation of your petitioner’s real estate.” A further instance of the inequality is set forth, in that it is alleged that in 1898 the total assessed valuation of all the real estate in the borough of Manhattan was-$1,856,467,923, while in the year 1899 it was $2,054,903,875, an increase of $198,435,952, or ten and six-tenths per cent, “such increase being over 538 per centum less than the percentage of increase in the assessed valuation of your petitioner’s said real estate.”
It is also alleged'that the average assessed valuation of the other-real estate upon the same tax roll was assessed at a lower proportionate valuation than that of the petitioner’s, and that at the average-valuation of all the other, real estate upon said roll, the petitioner’s real estate ought not to have been assessed at more than $1,500,000,. showing that there was an over and inequal valuation to the amount of $1,000,000," to which extent "the petitioner claims that he has; -been injured. ■
These allegations, taken in connection with the other facts stated,, are sufficient prima facia to establish overvaluation and inequality,, and necessitate a trial of the questions raised.
The order appealed from is right and should be affirmed, with costs.
Patterson and Ingraham, JJ., concurred; Van Brunt, P. J.,. dissented. ■ '
Sic.