These proceedings are before this court on appeal by both the respondents (defendants) and the relator from the final order entered upon the decision of the referee.
The twenty-one proceedings now before the court were brought to review the special franchise assessments for the years 1909-1918, *105inclusive, and 1926-1936, inclusive, upon the crossings or other occupations by relator’s railroad over and along streets and highways in the city of Buffalo. In these proceedings relator claims that the assessments for the crossing of Lord and Smith streets are invalid because the railroad preceded the streets; that the assessments for the crossing of Marilla and Cornelia streets and that for the lengthwise occupation of North Division street were invalid because no such streets ever existed at the points of crossing or other occupation involved; and that the assessments for “ Buffalo River (upper) Railroad Bridge ” was invalid because the river was not navigable and, therefore, not a highway at the point of crossing.
The State Tax Commission by further returns in each of these proceedings set up the bar of the decision in the like proceedings to review assessments on the same crossings and occupations for the year 1908 in which proceeding the assessments were sustained. The appeal in the 1908 proceeding was argued before this court September 23, 1938. A decision dismissing the appeal was handed down November 2, 1938. (People ex rel. Western N. Y. & P. R. Co. v. Woodbury, 255 App. Div. 894.)
The defendants, in support of their pleas in bar, upon the trial of these proceedings, introduced in evidence the record in the 1908 case. That record was not reprinted in this record, but it was stipulated that either party might refer to any portion of the 1908 printed record now on file in this court.
The 1908 record shows that the petition for the writ alleged that the assessments for tracks lengthwise in North Division street and for the crossings of Marilla and Cornelia streets and Buffalo river were invalid for the reason that those streets did not exist at the alleged crossings or occupations, and that the river was not a “ highway ” at the point of crossing.
The court at Special Term found that all the streets in question were public streets in the city of Buffalo and that the relator was the owner of a special franchise therein and in the crossing of the Buffalo river.
The referee in his opinion says: “ Respondents contend that the Chester order states the ultimate facts, in that it adjudges that the State Board of Tax Commissioners had jurisdiction of the relator and the subject matter of the assessments and had full power to finally fix and determine the value of each and every of relator’s special franchises within the City of Buffalo; and that such adjudication operates as an estoppel as to all matters affecting the legality of the assessments contested in these proceedings.”
Justice Chester ignored the question of prior occupation. In his opinion (reported sub nom. People ex rel. N. Y. C. & H. R. *106R. R. Co. v. Woodbury, 74 Misc. 130, 142; Id. 145) Mr. Justice Chester held that it was of no importance whether the railroad was a prior occupant. “ I cannot yield my assent to the contention that, as to streets which have been opened up and extended across the right of way of any of the relators since the construction of their respective roads, they are not assessable for special franchises at such crossings.”
The same case, on appeal (People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 145 App. Div. 900; 203 N. Y. 167), laid down the principle that when a public highway is laid across a track of an existing railroad it is not a crossing hable to taxation as a special franchise.
The referee has found that there was no adjudication in the Chester order as to the status of crossings where a railroad may have been a prior occupant.
The referee further says:
“ Another question as to the effect of the Chester order is as to whether it may operate as an estoppel in a proceeding to review a subsequent assessment made by the State Board of Tax Commissioners after a change of membership. When the assessments for the years subsequent to 1913 were made there had been a complete change of membership of the State Board of Tax Commissioners. In that situation the law appears to be that the adjudication on the 1908 assessments does not operate as an estoppel in favor of or against the new Commissioners. (People ex rel. Eckerson v. Zundel, 157 N. Y. 513; People ex rel. Norwich Pharmacol Co. v. Porter, 132 Misc. 609; 228 App. Div. 54; People ex rel. American Mfg. Co. v. Commissioners, etc., 104 Misc. 703; People ex rel. Tishman & Son v. Cantor, 109 id. 495; Matter of St. Lawrence Transmission Co. v. McAvoy, 137 id. 603-610.)
“ I hold, as above indicated, that there was no adjudication in the proceedings to review the 1908 assessments on the matter of prior occupation by the railroad and, if there was such adjudication, it does not operate as an estoppel on the review of assessments made subsequent to 1913, and further, that the adjudication made on the 1908 assessments as to the existence of certain streets does not operate as an estoppel in these proceedings so far as they involve assessments made after. 1913.”
The referee found that Smith and Lord streets did not exist across the railroad right of way at the time the railroad was constructed and he ordered that the assessments for crossing Smith and Lord streets should be canceled. The referee held that Cornelia street and Bass alley were never dedicated or laid out and accepted as public streets. He further held that no assessment had been made for crossing Bass alley since 1909 but that one assessment *107must be sustained because of the adjudication made on the 1908 assessment. He further held that the crossing of Cornelia street for the years 1909-1913, inclusive, must be upheld because of the 1908 decision and that for all years subsequent to 1913 the assessment was annulled because the street did not exist.
The opinion of the referee further states that Marilla street at the point in question has never been laid out as a public street and he decided that the assessments for crossing Marilla street for the years 1909-1913, inclusive, should be upheld because of the 1908 decision and for the years 191-LT936, inclusive, the assessments should be canceled.
The referee further says that North Division street in the block assessed for lengthwise occupation never existed as a street either by dedication, acceptance or usage. No attempt to assess relator for the occupation of this block has been made since 1916 and he decided that “ the assessments for lengthwise occupation of North Division street for the years 1909 to 1913, inclusive, should be upheld and that the assessments for the years 1914 to 1916, inclusive, should be canceled.”
The referee, by his opinion, held that the'adjudication on the 1908 assessments operated as an estoppel until such time as the membership of the State Board of Tax Commissioners had changed in 1913.
A recent decision in the case of People ex rel. Hilton v. Fahrenkopf (279 N. Y. 49) held that the case of People ex rel. Warren v. Carter (119 id. 557) did not decide more than the proposition that the value of property for taxation as adjudicated in one year may be evidence of its assessable value for a succeeding year. And that the Warren case is not authority for the application of res judicata.
The court in its opinion further said: “It is of the essence of an assessment that it fixes value as of a certain time. Each annual proceeding is separate and distinct from every other. Year by year an assessor must use his own judgment and must verify the roll. (Tax Law, § 28.) From these considerations it results that a prior judicial determination of value does not legally bind successor assessors. (People ex rel. Eckerson v. Zundel, 157 N. Y. 513.) It was by that decision suggested, to be sure, that a different result might consistently be predicated of the circumstance that no change in the personnel of an assessing board had occurred since a prior adjudication of value was made. We are now persuaded to say that we think this suggestion was unsound, for value in one year is not in issue thereafter nor are the assessors themselves real parties in interest. Accordingly, we conclude that (though the assessing officers have at all times been the same persons) the doctrine of res judicata can have no true application to the *108issues of value in recurring assessment proceedings. (Cf. Tait v. Western Maryland Ry. Co., 289 U. S. 620.) ”
The final order, in so far as it vacates and annuls assessments for alleged special franchise occupation, is affirmed. To the extent that the final order fails to vacate and annul assessments where the referee held the evidence establishes prior occupation and non-existence of streets and for the years that the final order fails to cancel and annul assessments for the crossing of Buffalo river (upper bridge), the final order should be reversed, without costs to either party.
Hill, P. J., McNamee and Heffebnan, JJ., concur; Rhodes, J., dissents, with an opinion.