KELLOGG, J.
Evidence was submitted to the assessors on the part of the relator that it possessed no real property in the tax district except its poles, lines, equipment, etc., in the public highway. The fact so proven is now denied by the return; but, in the proceedings before the assessors, there was no denial thereof raised by the proof. It was conclusively proven, without contradiction before the assessors, that the relator had no such poles and wires and no real estate assessable as such by that board. The assessment, therefore, was arbitrary, capricious and wholly without justification. People v. Barker, 139 N.Y. 55; People v. Barker, 141 id. 251; People v. Feitner, 78 A.D. 313; People ex rel. Brooklyn Union Gas Co. v. Feitner, 82 id. 368.
It is true that the petition and return in certiorari proceedings are regarded as pleadings, and also is it true that a reviewing court may take evidence in addition to that submitted before the assessors and judge the assessment thereby. It is not sufficient, however, that the petition and return themselves raise an issue; they must disclose an issue raised before the assessors. The existence of such an issue at such time, raised by competent and contradictory proof, is an essential condition precedent to an examination de novo by a reviewing court. Such an examination is in amplification of a prior investigation raising an issue. It is no more the prerogative of the assessors first to create an issue before a court sitting in review than it is the privilege of the relator. The re-examination upon review may be had only provided the prior examination involved a dispute and a doubt and not where such examination was entirely conclusive, permitting but one course of action to the assessors. People ex rel. Bhumgara Co. v. Wells, 93 A.D. 212.
It appears to me, also, that were it true as now asserted by the return that the relator possessed poles, wires, etc., upon private ground the same was not assessable by them as real estate. This case could not then be distinguished in anywise whatever from the case of People v. Feitner, 99 A.D. 274, the court's reasoning in which is entirely convincing, though the decision itself may be in conflict with prior authority.
For all these reasons the assessment complained of should be stricken from the roll.
Ordered accordingly.