(dissenting). Most of the occupancies here involved were assessed as special franchises for the year 1908, and such assessments were upheld upon review at Special Term. The referee herein held that such determination was only conclusive in favor of or against the Commission herein for the years in which its membership remained unchanged, evidently upon the theory that in other years there was not an identity of parties; in this I think he was in error and that the determination for the year 1908 is conclusive as to the question of taxability, regardless of whether the membership of the Commission remained the same, or changed from year to year, and regardless of whether his decision was legally correct under the rule established by the courts in other cases.
A decision of the court as to a determination of local assessors is not necessarily res judicata so as to bind future assessors (People ex rel. Norwich Pharmacol Co. v. Porter, 228 App. Div. 54; People ex rel. Eckerson v. Zundel, 157 N. Y. 513; People ex rel. Hilton v. Fahrenkopf, 279 id. 49), but this court has twice held that a decision covering a deterihination of the State Tax Commission as to the taxability of franchises is conclusive and binding upon the Commission as to subsequent assessments.
In People ex rel. Rutland R. R. Co. v. State Tax Commission (226 App. Div. 707) this court affirmed without opinion a decision of the court below. The opinion below was not published, but will be found at pages 105-106 of the record on appeal therein. In that case an order had been rendered annulling a special franchise tax upon the ground that bridges there in question were maintained over a non-navigable stream and that, therefore, the Commission had no authority to impose a special assessment thereon.
The Commission later attempted to impose special franchise assessments upon the same structures and in a certiorari proceeding to review such determination the court below and this court *109held that the judgment in the previous proceeding was binding upon the Commission and that the Commission was barred by the former judgment in those proceedings from assessing a special franchise tax involving such bridges.
In People ex rel. N. Y. C. R. R. Co. v. State Tax Commission (241 App. Div. 780) the proceeding involved a special franchise assessment against a bridge of the relator in the towns of Cicero, Onondaga county, and Hastings, Oswego county. A previous assessment against such bridge was reviewed by certiorari in the court below where it was held that because the length of the bridge over the navigable part of the river was less than 250 feet it was not taxable as a special franchise. The decision was erroneous, as the bridge in question was 430 feet long from the vegetation line on the north to the vegetation line on the south of the river. Subsequently, the Commission again attempted to assess a special franchise tax against the structure. On review this court affirmed the decision of the referee below to the effect that the former decision was conclusive as to the taxability of the structure.
In the decision relative to the 1908 assessment of the franchises involved herein they were held assessable irrespective of whether there had been a prior occupancy by the railroad company before streets were established at the locations in question. Although this construction of the law was erroneous (See People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 203 N. Y. 167), such error does not affect the finality and binding effect of the 3 908 decision relative to the special franchises herein involved. In this respect there is no difference between errors of fact and errors of law. (People ex rel. International Salt Co. v. Graves, 267 N. Y. 149.)
The Commission has been and is one continuing body (See Laws of 1896, chap. 908, § 170; Laws of 1909, chap. 62, § 170; Laws of 1921, chap. 90, § 1; present Tax Law, § 170), though logically it would seem to be of no consequence whether the Commission is or is not one continuing body; even an increase in assessment made by local assessors has been questioned in the absence of an increase in its value or some change affecting its assessable value (People ex rel. Warren v. Carter, 119 N. Y. 557. See, also, People ex rel. Norwich Pharmacol Co v. Porter, supra; People ex rel. Eckerson v. Zundel, supra), although “ the doctrine of res judicata can have no true application to the issues of value in recurring assessment proceedings.” (People ex rel. Hilton v. Fahrenkopf, supra.)
As to occupancies not covered by the 1908 decision, where the railroad crosses over a subway which has been created in grade crossing eliminations to carry the street under the railroad, I think the relator is correct in asserting that the tangible structures involved *110in improvements are not taxable as special franchises. (Transit Comm. v. L. I. R. R. Co., 253 N. Y. 345; People ex rel. N. Y., O. & W. R. Co. v. Tax Comrs., 215 id. 434; People ex rel. B. & L. E. T. Co. v. Tax Comrs., 209 id. 496; People ex rel. N. Y. C. & H. R. R. R. Co. v. Purdy, 215 id. 728; People ex rel. N. Y. C. & H. R. R. R. Co. v. Tax Comrs., 179 App. Div. 421; affd., 223 N. Y. 671.)
The referee vacated the assessment of the sea wall strip for' the years 1917 and 1918, except as to an item of $900 conceded' by the railroad. This property was conveyed to the railroad in; 1915, and the assessments which have been made were for the years 1917 and 1918. ;
The assessments for intangibles as to Lord street, Smith street, Bass alley, Marilla street, North Division street (lengthwise) and Cornelia street were held taxable by the 1908 decision which, therefore, is conclusive upon the relator as to subsequent years,. except where there may have been a change in the character of the occupancy, but the tangible properties carrying the streets under the railroad involving Lord street, Smith street and Mineral Springs road, were not involved in the 1908 decision, and are not assessable under the cases last above cited. The 1908 decision is also conclusive as to the occupancy involving Buffalo river except as it may be shown that the condition as to navigability has since changed; in the absence of such proof the occupancy is taxable.
The occupancies in North Division street, South Division street, Emslie street, Swan street and Fillmore avenue, in so far as they were held assessable by the 1908 decision, are by virtue, thereof now assessable. Mineral Springs road subway was constructed later, in 1921, and is not, therefore, affected by the 1908 decision, but under the decisions is not assessable.
In brief, I think that the 1908 decision is conclusive as to the taxability of the occupancies here involved, which were covered by the decision; that as to streets carried under the railroad in grade crossing eliminations, the tangible structures are not taxable.
Subject to the modifications suggested herein, I think the decision should be affirmed.
The final order, in so far as it vacates and annuls assessments, for alleged special franchise occupation, should be 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 is reversed on the law and facts, without costs to either party.