This is an application to review by certiorari the assessment as real estate, for the purposes of taxation, of the relator’s underground conduit system. The relator moves for a reference to take testimony, and the respondents move to dismiss the writ. The relator, as required by the charter, made written application to the respondents for a reduction of the assessment. That application undertook to allege that the assessment was illegal, both on account of over-valuation and inequality. The allegation as to inequality was not stated in the application in such form as to constitute a basis for action by the commissioners, and in its petition for the writ of certiorari the relator makes no claim of inequality. That objection to the assessment is, therefore, to be deemed waived. People ex rel. Western Union Tel. Co. v. Tierney, 57 Hun, 357. This leaves to be considered only the allegation as to over-valuation. Under section 895 of the Greater New York charter of 1897, which was in force when this assessment was made, a person feeling aggrieved by the assessed valuation of his real estate was required to make an application for the correction of the assessment in writing stating the ground of objection thereto. The writ of certiorari is essentially a writ of review and its function in matters of taxation is to review the action or refusal to act of the tax commissioners. Consequently no objections are brought up for review, except such as were presented to the commissioners upon the application for correction. Matter of Winegard, 78 Hun, 58; People ex rel. N. Y. & N. J. Tel. Co. v. Neff, 15 App. Div. 8. The objection tó the assessment cannot, therefore, be expanded by the petition for the writ. In the present case the application to the. commissioners is attached to the petition and by reference made a part of it. The question presented by the motion and countermotion is whether or not the objection made to the assessment as contained in the application for correction addressed to the commissioners, is sufficient to call for the taking of evidence. Under section 253 of the General Tax Law the granting of an application to take evidence is not a matter *465addressed to the discretion of the court, but is a substantial right if issues of fact are raised by the petition and the return, the issuahle allegations of the petition being those which were contained in the application to the commissioners. People ex rel. Thomson v. Feitner, 168 N. Y. 441, 457. If it should appear that the facts stated in the application for correction, if taken as true, are not sufficient to establish the over-valuation no issue is presented requiring evidence to be taken, although the commissioners in their return may, for greater caution, have undertaken to answer or deny some or all of the allegations, since the denial of an immaterial allegation cannot raise an issue which must be tried. What is a sufficient allegation of over-valuation to raise a question requiring the taking of evidence has been much discussed. In People ex rel. Broadway Improvement Co. v. Barker, 14 App. Div. 412, the allegation was positively made that the property was assessed at $210,000 more than was in accordance with the marketable value thereof. This was held to he equivalent to an allegation that the assessment was $210,000 in excess of the price at which the property would ordinarily sell, and was accordingly considered a sufficient allegation of over-valuation. In People ex rel. Bronx Gas Co. v. Feitner, 43 App. Div. 198, the allegation was that the property was assessed at $89,000, instead of $14,644, which was the full value, and at more than it would sell for under ordinary circumstances, and this allegation was deemed sufficient.' In People ex rel. Sutphen v. Feitner, 45 App. Div. 542, the relator used the precise language used by the relator in the present case, alleging that his property had been assessed at $145,000, whereas the same should not have been, in his judgment, valued at more than $69,000 to he in accordance with the market value thereof. He then alleged that the property had not increased in market value since 1895, and had been assessed in 1895 at $57,000, being increased to $69,000 in 1896, but he did not show that the property in those years had been assessed at its true market value. These allegations were held to be insufficient to raise any issue of fact, since the relator had merely made a claim of over-valuation and had stated no facts upon which the claim was based. Erom these cases the rule may be deduced that in order to warrant the taking of evidence the applicant must state facts from which, if taken to be true, it can be seen that the property has been over*466valued. Since the petition and return in a tax certiorari are construed and treated as the pleadings in an action, the relator may either allege the over-valuation as a matter of fact, as was done in Broadway Improvement Co. v. Barker, supra, and in People ex rel. Bronx Gas Co. v. Feitner, supra, or may set forth a claim of overvaluation supported by the averment of particular facts to sustain the claim as was done in People ex rel. Thomson v. Feitner, supra. In the present case the relator’s application was as follows: “ It finds that the same (its real estate) has been assessed on the ■assessment-roll of 1899 at a valuation of $905,000, whereas the same should not have been, in its judgment, valued at more than $500,000 to be * * * in accordance with the fair marketable value thereof.” This, as will be seen, is the precise language which was held to be insufficient in People ex rel. Sutphen v. Feitner, supra. It does not allege over-valuation as a fact, but merely states that in the opinion of relator, meaning, no doubt, the opinion of the officer who signed the application, the property is assessed beyond its marketable value. It is a mere expression of opinion and not a statement of fact, and is not even evidence of the fact because it nowhere appears that the person expressing the opinion is qualified to do so. The application then went on to state certain facts, intended, no doubt, to support the claim of over-valuation, but which are insufficient to do so. • It stated that the entire system had been deteriorated and damaged by the action of stray electric currents, causing electrolysis, but it did not state what had been the value of the system before it had been damaged, or how much the damage had been. Non constat but that even in its damaged and deteriorated condition the system might be worth all it had been valued at. The relator further alleged that much of its system had been in the ground for many years and was worth but a part of its original value and at the present cost price of similar material is much less than it was when said system was put in. But there was no statement as to how much of the system had been in the ground for many years, or what its original value was, or what part of its original value had remained, or what was the cost of the material when the system was put in, or how much less the cost of similar material is now. So that, if all the facts alleged in support of the relator’s claim or opinion of over-valuation were to be taken as true, there would still be nothing upon which to base a presumption that the valuation fixed by the respondents was *467excessive, for notwithstanding all the deterioration in value claimed the property might well he worth what it is assessed at.
The motion for a reference must he denied, and the writ dismissed, with costs.
Motion denied and writ dismissed, with costs.