THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK, WESTCHESTER AND BOSTON RAILWAY COMPANY, Appellant,
CHARLES H. HYDE, Chamberlain of the City of New York, and DAVID E. AUSTEN, Receiver of Taxes of the City of New York, Respondents.
APPEAL by the relator, the New York, Westchester and Boston Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of October, 1910, denying the relator's motion for a peremptory writ of mandamus.
George S. Graham, for the appellant.
Curtis A. Peters, for the respondents.
The relator is a railroad corporation organized under the laws of the State of New York. By virtue of an ordinance theretofore passed by the board of aldermen of the city of New York the relator obtained from the city the right and privilege to construct and operate a four-track railway in, upon and across certain streets,
avenues, parkways, highways and public places of the borough of the Bronx in such city, subject to certain conditions, one of which was that the relator, its successors or assigns should pay to the city 'During the first ten years, commencing upon the day when this ordinance shall be approved by the Mayor, an annual sum of eight thousand (8,000) dollars, and during the succeeding fifteen years an annual sum of sixteen thousand (16,000) dollars. From the date of the commencement of the operation of any portion of the railway until the end of the first ten years of this grant, an additional sum of forty (40) cents per linear foot per annum for each line of single track railway within the lines of all streets in use, legally opened streets, or streets for which proceedings to open have been initiated, and for the succeeding fifteen years an additional sum of eighty (80) cents per linear foot per annum, in lieu of said sum of forty (40) cents. * * * All such payments shall be made to the Comptroller of the City in equal payments at the end of each quarter year on the 1st day of January, April, July and October in each year.'
Thereafter, by agreements between the relator and the city, certain amendments were made to the ordinance in part changing and redesignating the streets, avenues, parkways, highways and public places as originally designated, but not affecting the compensation to be paid. The quarterly payments of $2,000 provided for in the ordinance have been made to the comptroller, but no payments have been made under the clause providing for a payment of forty cents per linear foot per annum, inasmuch as no operation has been commenced on any portion of such road.
In the years 1908 and 1909 the relator had constructed certain bridges and structures over and across a few of the streets, but had not commenced the construction across the greater part of them. Many of the streets and avenues named in the ordinance and amendments thereto have not been opened by the city, nor have proceedings to open the same been taken, and, according to the record, at the present time and for many years to come, it will be impossible to ascertain or determine the exact number of streets, avenues and public places which will intersect with the located route of the relator's railroad and under or over which such road will cross.
The State Board of Tax Commissioners of the State of New York, in the years 1908 and 1909, fixed and determined the value of the
special franchise of the relator in the city of New York, and included therein the bridges, viaducts and other structures which had at that time been erected by the relator, and such board in each year filed a statement of the valuation of the relator's special franchise in the city of New York with the department of taxes and assessments. Thereafter the city of New York assessed the relator on account of its special franchise in such city for each of the years mentioned according to the valuation certified to it by the State Board of Tax Commissioners, and upon which a tax was thereafter levied by the city of $5,889.74 for the year 1908, and the sum of $6,123.16 for 1909. In each of these years the relator demanded that the chamberlain of the city certify to the receiver of taxes the payments made by it under said ordinance, and that the receiver of taxes credit on the tax roll to the relator the amount stated in such certificate to the amount of the special franchise tax. The demand in each instance was refused. The relator thereupon made a motion for a peremptory writ of mandamus to compel the chamberlain to make such certificate and the receiver of taxes to give such credit. The motion was denied, and the appeal is from the order.
I am of the opinion the motion should have been granted. Section 48 of the revised Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62; re-enacting Gen. Laws, chap. 24 [Laws of 1896, chap. 908], § 46, added by Laws of 1899, chap. 712), in so far as the same is material to the question under consideration, provides that: 'If, when the tax assessed on any special franchise is due and payable under the provisions of law applicable to the city, * * * in which the tangible property is located, it shall appear that the * * * corporation affected has paid to such city, * * * for its exclusive use within the next preceding year, under any agreement therefor, * * * any sum of money on account of such special franchise granted to or possessed by such * * * corporation, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city * * * shall be deducted from any tax based on the assessment made by the State Board of Tax ...