Final order modified on the law in accordance with the memorandum and as modified affirmed, with costs to the respondent State Tax Commission. Memorandum: On the merits, the
relator-appellant has failed to sustain its burden of proof that the assessments *1008are excessive. We find no statutory authority for the allowance of costs to an intervener in a tax certiorari proceeding. The final order should be modified by striking therefrom the allowance , of costs to the intervener City of New York and, as thus modified, affirmed. All concur, except Vaughan and Kimball, JJ., who dissent and vote to vacate the report of the Referee. (See dissenting opinion filed in People ex rel. New York Central R. R. Co. v. State Tax Comm., ante, p. 1002), decided herewith. (Appeal from a final order of Albany Supreme Court, James J. MeGuiness, Referee, dismissing the writs of certiorari and confirming franchise assessments, which appeal was transferred to the Fourth Department for determination.) Present — MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.