JOSLIN, J.
This statutory petition brought under G.L. 1956, § 44-5-26, as a challenge to the legality of a tax assessed as of December 31, 1964 by the assessor of taxes of the town of North Kingstown was dismissed by a justice of the superior court on the ground that the plaintiff had failed to set forth facts upon which relief would be granted. The challenged assessment was against the tangible personal property which, in Brown Sharpe, Mfg. Co. v. Cote, 101 R.I. 668, 226 A.2d 814, we held was not taxable in the city of Providence. In the light of that decision, the plaintiff concedes that its appeal has no merit.
For that reason, we deny and dismiss the plaintiff's appeal pro forma and with prejudice, and we remit the cause to the superior court for further proceedings.