On March 24, 1924, relator filed a report in relation to its special franchises in the city of Jamestown, N. Y., under section 44 of the Tax Law (as amd. by Laws of 1916, chap. 334), with a protest against the assessment of two bridge crossings over Chautauqua outlet and one overhead crossing over West Second street, under the claim that such crossings did not constitute special franchises. Nine crossings were reported. On December 1, 1924, the State Tax Commission fixed the value of all for taxation for 1925 at the gross sum of $124,800 and the rate of equalization at fifty-nine per cent and gave relator due notice thereof and that a meeting would be held at its office in. the city of Albany on January 6,1925, to hear and determine any complaints concerning such valuation and rate, as provided by section 45-a of the Tax Law. Relator did not appear and did not file any complaint. On February 4, 1925, the Commission fixed the rate of equalization at fifty-nine per cent and the equalized assessed valuation of all at $73,632, without giving the valuation of each separately. Then it served notice thereof upon relator and filed notice of such final assessed valuation with the director of assessments of the city, specifying the franchises and the aggregate. This proceeding followed. The petition alleges *202that Chautauqua outlet is not a public water or public place and that the crossings thereof do not constitute special franchises, within the meaning of article 1, section 2, of the Tax Law, under the claim that it is not a public navigable water in fact or in law and that the petitioner has the right and title, by conveyance, in and to the bed, at the places of the crossings.
As to West Second street, it alleges that the subway under relator’s track at the crossing was constructed in 1916, by order of the Public Service Commission, in place of the grade crossing there, as a 'convenience to the public and not to enable relator to operate its railroad, and, further, that relator’s occupancy is a prior occupancy and has been so adjudged. The outlet crossings had been assessed in the preceding years. The West Second street crossing was not assessed from 1908 to 1912, because of ; certain orders, entered in December, 1915, upon a stipulation as to the facts, but was reassessed at this time, the Commission says, because of the discovery from ancient records that a highway was at the street before the railroad was built. Relator claims that the assessment in each case was illegal, incorrect and erroneous. The motion to quash is based upon the petition and upon an affidavit of a Deputy Tax Commissioner and is upon the specific ground that relator did not appear and file objections on grievance day. Section 37 of the Tax Law (as amd. by Laws of 1924, chap. 491; since amd. by Laws of 1926, chap. 286) provides that the complaint on grievance day shall specify the respect in which the assessment complained of is incorrect. Section 45-a (added by Laws of 1916, chap. 334, as amd. by Laws of 1921, chap. 124) provides for notice of hearing and for a hearing to determine complaints concerning special franchise valuations. Section 46 (as amd. by Laws of 1918, chap. 278; since amd. by Laws of 1926, chap. 125) provides that such an assessment may be reviewed in the manner prescribed by article 13 of the Tax Law and states that the article applies so far as practicable in the same manner and with the same force and effect as if the assessment had been made by local assessors. And section 290‘ (as amd. by Laws of 1916, chap. 323), which is included in said article 13, provides that the petitioner, if illegality is the claim, shall specify the grounds; if overvaluation, the extent; and, if inequality, the instances and extent, and that the relator is or will be injured thereby. And it provides that the petition “ must show that the application has been made in due time to the proper officers to correct such assessment.” The provision as to timely application to the proper officers to correct is mandatory and relates to claims of *203illegality as well as to those of overvaluation and inequality. The provision is applicable to a review under section 46. Such an application is a condition precedent to the right of such review. (People ex rel. Erie R. R. Co. v. State Tax Comm., 128 Misc. 142; affd., 217 App. Div. 811.) This petition does not show that application was made as required.. It could not. No application was made and no complaint was filed. And that the motion to quash is an admission that the facts stated in the petition must be accepted as true is not material here. It is not the case of an assessment void on its face. (People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748, 750; Rice Memorial Hospital v. Village of N. Tarrytown, 187 id. 855, 857; People ex rel. Shepard v. Griffin, 208 id. 137.) The Commission had jurisdiction of relator and of the subject-matter. Whether or not the crossings were subject to assessment involved the questions of navigability and ownership in the one case and the question of prior occupancy in the other. Those were questions of fact for the determination of the Commission in the first instance and their determination was binding until set aside in the way prescribed by the statute. (People ex rel. L. I. R. R. Co. v. Tax Comrs., 231 N. Y. 221, 228; New York Central & H. R. R. R. Co. v. City of Yonkers, 238 id. 165,173.) Moreover, nine crossings were grouped in one assessment and six are not questioned. In effect, it was an overvaluation. (People ex rel. Soeurbee, Inc., v. Purdy, supra; People ex rel. L. I. R. R. Co. v. Tax Comrs., supra.)
The order of the Special Term should be reversed, with ten dollars costs, and the writ should be quashed, with ten dollars costs.
Van Kirk, Acting P. J., and Hinman, J., concur; Davis, J., dissents, with an opinion in which McCann, J., concurs.