Opinion
May, 1905.
Present — Van Brunt, P.J., Patterson, Ingraham, Hatch and Laughlin, JJ. Hatch, J., dissented.
Order affirmed, with costs, on the opinion of People ex rel. Sherwin Co. v. Barker ( 5 App. Div. 246).
I am unable to agree that the case of People ex rel. Sherwin Co. v. Barker ( 5 App. Div. 246) is controlling of the questions presented by this appeal. On the contrary, I think the facts are in all essential respects the same as were presented to the court in People ex rel. Durand-Ruel v. Wells (41 Misc Rep. 144; affd. by this court on appeal, 92 App. Div. 622). The distinction between that and the Sherwin Co. case and the authorities upon which it was based is clearly pointed out by Mr. Justice Leventritt in his opinion. The order reducing the assessment should, therefore, be reversed and the assessment as made confirmed.