The relator has proceeded by writ of certiorari for the review of assessments levied in 1923 against many parcels of real property owned by it and located in the town of Osceola, Lewis county, N. Y.
It alleges in its petition illegality, overvaluation and inequality of the assessments. (Tax Law, § 290, as amd. by Laws of 1916, chap. 323.)
Respondents did not make return to the writ but moved at Special Term to have.it quashed on grounds which in substance charged that the petition was on its face insufficient to give the court jurisdiction.
On grievance day the relator appeared before the assessors of the town of Osceola and filed a verified complaint objecting to the assessments for 1923 against its property in said town, and the *628complaint so filed is annexed to and made part of the petition in this proceeding. The complaint and petition should, therefore, be considered together, without considering immaterial matters contained in affidavits and correspondence filed with the court after the statement and petition had been filed and the writ granted. The Special Term’ granted the motion to quash the writ in so far as it had reference to overvaluation, holding that the petition failed to state the extent of overvaluation, and was, therefore, inadequate, but denied the motion in other respects, except to dismiss the Writ as to the town clerk and supervisor of the town, holding that as to the charges of illegality and inequality, the petition was sufficient and adequately set forth the grounds of relator’s complaint.
Section 290 et seq. of the Tax Law (as amd. by Laws of 1916, chap. 323, and Laws of 1920, chaps. 643, 649) provides that any person assessed upon any assessment roll, claiming to be aggrieved by any assessment for property therein, may by writ of certiorari apply for relief on the following grounds: First. For illegality, but the grounds of the claimed illegality must be specified. Second. For being erroneous, because of overvaluation, but in that case the extent of the claimed overvaluation must be stated. Third. For being unequal in that the assessment complained of has been made at a higher proportionate valuation than the assessment of other property on the same roll, specifying the instances in which such inequality exists and the extent thereof.
I think the relator has failed to set forth either in its complaint or petition sufficient facts to entitle it to raise the questions either of illegality, overvaluation or inequality of the assessments.
The sole ground of the claim that the assessment is illegal has reference to the assessment of relator’s railroad in the town of Osceola.
In the complaint filed with the assessors it Was charged that the respondents (assessors) had no jurisdiction in their attempted assessment of relator’s railroad, entered on the tax roll of 1923 in said town as follows: “ Dexter Company, 9J miles of Railroad, $26,000.00,” and that it constitutes a double assessment, and if assessable at all it should be as personal property at relator’s place of residence at Brownville, Jefferson county, N. Y., where is located its principal office for the transaction of business.
Practically the same objection as to this assessment is pointed out in the 9th subdivision of the petition.
Concededly this nine and one-half miles of railroad is the property of relator, and is physically located in the town where the assessment was made, so the respondents had jurisdiction. Relator claims that this is not a railroad.
*629A railroad is “ a road specially laid out and graded having parallel rails of iron or steel for the wheels of carriages or cars drawn by steam or other motive power to run upon.” (33 Cyc. 33.)
There is nothing in the entry on the assessment roll indicating that the assessors intended to assess the rolling stock of this railroad. On the contrary, the terms of the entry, “ 9| miles of Railroad,” concededly physically located in the town of Osceola, indicate that the term “ railroad ” was used in its ordinary sense, being a graded road with parallel rails of iron or steel for the wheels of cars to run on.
The complaint filed with the assessors should have pointed out in more detail what, if any, personal property had been included in this item of the assessment. The railroad being in their town the assessors had jurisdiction to assess it if it was real property. (Tax Law, § 9, as amd. by Laws of 1911, chap. 315, and Laws of 1916, chap. 323.)
It must be presumed that the assessors performed their duties properly (People ex rel. Rayland Realty Co., Inc., v. Cantor, 122 Misc. 449) and assessed the railroad as real and not personal property.
The burden was on relator to show that the assessment was in fact in regard to personal property, but the moving papers did not set forth any facts tending to show that personal property was included in the railroad assessment.
The description of this railroad as entered on the tax roll was such that no one could be deceived, either as to the quantity of land assessed or its location (People ex rel. Mohawk & Malone R. Co. v. Garmon, 63 App. Div. 530), and the right of way and tracks constituted real property taxable within the town where located. (People ex rel. New York & Harlem R. R. Co. v. Comrs. of Taxes of N. Y., 101 N. Y. 322; Tax Law, §§ 9, 11.)
The railroad assessed being in the town of Osceola the assessors had jurisdiction of the subject-matter, and in the absence of sufficient facts in the petition pointing out what, if any, personal property was included in the assessment, and wherein it was a double assessment, the complaint and petition are deemed insufficient to raise the question of illegality of assessment. (People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; affd., 222 N. Y. 657; People ex rel. Masonic Hall Assn. v. White, 126 Misc. 661.)
Likewise, on the questions of overvaluation and inequality of the assessments, the petition is insufficient and inadequate, for it fails to show sufficient facts to raise these issues.
The relator in its petition and complaint filed with the assessors, pointed out many parcels of its land located in Osceola which it claims have been overvalued, but in not one instance is the true *630or market value of any of these parcels given. Relator contents itself by putting down the assessed valuation, but gives no other facts. That is insufficient, for the extent of the overvaluation should have been given, and the facts showing inequality in assessments should have been stated. (People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; affd., 222 N. Y. 657; People ex rel. Sutphen v. Feitner, 45 App. Div. 542; People ex rel. Mills v. Purdy, 177 N. Y. Supp. 277; People ex rel. O’Neil v. Purdy, 188 App. Div. 485; People ex rel. N. Y. C. R. R. Co. v. Wadsworth, 210 id. 865.)
The last case cited was decided by this court. The petition charged that the assessment was “ illegal, erroneous, unjust and inequitable; ” that it was erroneous in that it was unequal and disproportionate, as it was made at a higher proportionate valuation than the assessments upon the other property generally on said assessment roll; that the property on the roll other than that of petitioner was not assessed at its full and true value, and not over fifty per cent thereof, and it refers to all property on the assessment roll other than that of the petitioner. Values of separate parcels either of petitioner’s lands, or lands of other parties assessed on the same roll were not given.
The writ was quashed at Special Term on the ground that the petition failed to set forth the extent of overvaluation or inequality as to individual parcels, and the order was affirmed on appeal to this court.
Lower assessments on adjoining property are not sufficient to show inequality of assessment. (People ex rel. Rayland Realty Co., Inc., v. Cantor, 122 Misc. 449.)
The relator charges that the assessment against its property was invalid and erroneous, because the roll does not contain all of the personal property in said town liable for taxation, and because the real and personal property in said town other than that of relator is not assessed at its full and true value, and that the assessments are unequal because made at a higher proportionate valuation than other real property belonging to property owners in said town and assessed on the same roll, but the petition does not give sufficient facts to support these allegations. It does not point out what personal property has been omitted from the roll, and it does not specifically point out what property other than that of relator is not assessed at its full and true value, and it does not show facts to justify the bald assertion that relator’s property Was assessed at a “ grossly higher proportionate valuation ” than other property owned by other parties and assessed on the same roll. It does not point out the full and true value of relator’s property, and it does not give instances of property of other parties *631assessed on said roll at a lower proportionate valuation than the assessments against property owned by relator.
If it be assumed that the relator had alleged in the petition and complaint that every other parcel of real estate in the town except the parcels owned by the relator was assessed at a fixed percentage of true value and the petition and complaint had then given the fair market value of the relator’s land, the case of People ex rel. Ward v. Sutton (230 N. Y. 339) would have been an authority sustaining the relator’s contention that the petition and complaint state sufficient facts to require the issues of overvaluation and inequality to be tried. In the absence, however, of such allegations, the case becomes an authority for the board of assessors.
The complaint and petition are insufficient" and inadequate to properly raise the questions either of illegality, overvaluation or inequality of assessment.
The order in so far as it adjudges that the petition on which the writ was issued was insufficient to raise the question of overvaluation, and in so far as it dismisses the writ as against the supervisor and town clerk, should- be affirmed, but in all other respects the order should be reversed and the motion to quash the writ is granted, with costs to the respondents, the board of assessors.
Crouch, J., concurs; Davis, J., concurs as to the assessment on the railroad, but dissents in an opinion as to overvaluation and inequality; Sears, J., concurs in result, except as to the assessment on the railroad, as to which he votes to affirm; Taylor, J., concurs except as to inequality, as to which he votes to affirm.