(dissenting). The city of Albany appeals from an order and judgment in a tax certiorari proceeding which reviewed and reduced the 1937 assessment upon the Hilton property located at 41 North Pearl street from $800,000, as assessed by the city authorities, to $400,000. The assessments upon this property and attendant reviews by the courts are a continuing story, and although in connection with the 1936 assessment (People ex rel. *484Hilton v. Fahrenkopf, 279 N. Y. 49) the Court of Appeals has disapproved of the rules as to the application of res judicata to tax reviews, commonly supposed to have been made in People ex rel. Warren v. Carter (119 N. Y. 557) and People ex rel. Eckerson v. Zundel (157 id. 513), yet as a matter of historical juristic interest we may be permitted to recall the assessments of earlier years, even if we may not give weight thereto.
Upon the trials for assessments made in the years 1934, 1935 and 1936, the parties stipulated that property generally in Albany was assessed at eighty-eight per cent of the full value, or in the language of these cases there was twelve per cent inequality. There was no stipulation as to inequality in this case. The assessment for each of the four years was $800,000, which was reduced each year. In 1934 the full value was found by the trial court to be $558,000, and this was reduced by the stipulated amount of twelve per cent for inequality to $491,040, assessable value. In 1935 the full value was found by the trial court to be $556,050 and was reduced by the stipulated amount of twelve per cent for inequality to $489,324, assessable value. In 1936 the full value was found by the trial court to be $800,000, and this was reduced by the stipulated amount of twelve per cent for inequality to $704,000. The Appellate Division reversed the finding of the trial court as to full value, and made a new finding that the full value was $556,050, which was reduced by the stipulated twelve per cent for inequality to $489,324. (254 App. Div. 397.) The new finding as to full value was reversed-by the Court of Appeals and the finding made by the Special Term reinstated. (279 N. Y. 49, 53.) The judgment and order under review fixed the full value at $560,000 and reduced that amount by twenty-eight per cent plus for inequality to $400,000. On the question of overvaluation, five witnesses were sworn by the relator and three by the city. The referee fixed a value between the two extremes and the Special Term approved the finding. This was in accord with the weight of the evidence. The referee found that property generally in the city of Albany was assessed at sixty-four per cent of full value, and thus that there was thirty-six per cent inequality. The relator had demanded reduction only to $400,000; the trial court was not permitted to find a lower assessed value. (Matter of Wright v. Comr. of Assessment & Taxation, 242 App. Div. 886.) Thus, as earlier stated, the full value was reduced twenty-eight per cent plus for inequality. This was in accord, with the weight of the evidence.
The judgment should be affirmed, with fifty dollars costs and-disbursements.
Rhodes, J., concurs.
*485Judgment and order reversed, on the law and facts, with costs to the appellants to abide the event. The court reverses all findings of fact and disapproves all conclusions of law made by the court below. The matter is referred to Hon. Aaron V. S. Cochrane, official referee, to hear the evidence and to report thereon, with his conclusions, to this court.