I dissent from the conclusion reached by the majority of the court. It is to be remembered that upon this appeal we are dealing with a pleading, not with a determination after a hearing and decision upon the facts.
*364• It is the office of a pleading to set oht -in a general way a , plain, concise statement of the facts. . Their development must be'deferred to the trial. In the amended, further return the respondent states . that it “ made no separate valuations of the tangible and- intangible property.” Whether the practice was correct or otherwise, it is a . statement of a fact, and is amplified and explained by the allegation setting, forth what was included in this gross valuation; It then alleges that no fixed rule was adopted in arriving at the valuation of the intangible property.
There are two well-known tests-available in'the ascertainment of the value of this class of property, one. the net-earnings rule, the other the stock and bond theory, and both were applied so far- as ■ the facts and circumstances permitted, and the Board exercised the best judgment upon, these'tests “and of all other circumstances and conditions affecting the value of said intangible property.” •
These are general statements proper in a pleading. The valuation arrived -at may be the result of many details not susceptible of precise statement in the return. It probably will be impossible for thé' respondent to set forth in the return just to wh'at extent each rule referred to influenced its decision. There, are three members of the Board. One may have given more importance to the net-earnings rule,, another to the stock and bond theory and the remaining one to other circumstances- and facts presented to the consideration of the -Board. The members of the Board considered the value of the property with the various methods in mind, and all eventually agreed upon" the .valuation arrived at. The members of the Board must have a large discretion. They are charged with the important duty of ascertaining and assessing the Value of these .franchises. The character of the property makes the duty a difficult one. The Legislature comprehended the. situation and, therefore, permitted a hearing to be had, evidently expecting that all the details influencing the decision of the Board could not be embodied in the return. If' injustice is done in any case it can be remedied when the facts are developed. (People ex rel. N. Y., O. & W. R. Co. v. Tax Comrs., 132 App. Div. 604, 610, concurring opinion of Presiding Justice Smith.)
The wide range vested in the, taxing board, and the complexity of the problem are elaborated upon in the opinion of .Judge Eabl, *365as referee, in the case of People ex-rel. Metropolitam, Street P. Co. v. State Board of Tax Commissioners,* and whose report was sustained by the Court of Appeals (People ex rel, Metropolitan, St. R. Co. v. Tax Comrs., 174 N. Y. 417). He states that the members of the Board are not required “ to adopt any certain or fixed rule or method. The only rule for their guidance is the actual value of property to.be assessed, and they may avail themselves of all tests of such value within their reach and of every fact and all. information, which in their judgment has any bearing upon such value. * * * If the local assessors throughout the State are bound to adopt some certain rule or method in reaching assessable values, and if their assessments must fail unless, when questioned, they can state some certain rule or method by which they were guided, I believe a large share of their assessments would fail to withstand the assaults of the taxpayers. * * - Here the same rule was adopted by these officers in all cases, to wit: To use all the tests of values and all the facts and information bearing upon values, and then to fix the fair values of the franchises, including no other property, using their best judgment, and no decision condemns such an assessment.” “ They may act upon hearsay, they may take the judgment of others, they may consult experts and resort to all the tests and information which they think will aid them in reaching the value with sufficient accuracy for the purpose of taxation and they certainly can resort to all the means and evidence for the guidance of their judgment which private persons might use to reach the values of similar property in which they propose to invest their money. They may consider the cost of reproduction, the amount of business, the earning capacity, the location of the franchise, and all its advantages, and all the probabilities and possibilities relating to it, present and future.”
, Judge Vann in his opinion, referring to special franchises and the difficulty of their valuation, said: “ They could not be seen, handled, measured, weighed or counted. They were specialties, and had no market value. There were no sales to guide, and no experience from ownership, rental or use to rely upon. The new property is real estate in name, but not in reality, for it is a *366mere privilege to do something in public streets and places not permitted to citizens .generally! While local in a harrow sense, it is unconfined in its real nature, for it depends largely on the earning capacity of a going concern, frequently with several special franchises, • but with no means of determining the amount earned by each.”
With the multitude of .circumstances which must enter into the ascertainment of the valuation, it is unreasonable to require their specific statement in a return. . Mathematical • exactness is never expected of an assessor. When, several rules and methods and other elements, which cannot be crystallized into a regulation or method in any given assessment, are all permissible in order that the taxing, board may make a fair valuation, they cannot separate and specify these various factors of their valuation, much less to estimate the importance given to each factor.
They have stated the “modus operandi leading to the result which they reached ” (People ex rel. Jamaica Water Supply Co. v. State Board of Tax Comrs., 197 N. Y. 33); not in detail, but in a general way, setting forth the manner in w;hich they decided upon the valuation.
In each of the cases cited in the prevailing opinión the appeal was from a determination after the facts had been proven where a different rule obtains.
I think no benefit will result from a' further amendment of - the return, and, therefore, vote for; an affirmance of the order.
Kbuse, J., concurred. . ■
■ Order reversed, with - ten dollars costs and disbursements, and' motion granted:
See N. Y. Ct. App. Cases and Briefs of Counsel (State Law Libr.), Vol. 3764, No. 1, pp. 716, 733, 784.— [Ref.