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People ex rel. New York Central & H.R.R. Co. v. Priest

Supreme Court of New York, Appellate Division

March 6, 1912

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, Respondent,
v.
GEORGE E. PRIEST and Others, Constituting the State Board of Tax Commissioners, Respondents, and THE CITY OF NEW YORK, Intervenor, Respondent, Appellant. (Assessment of 1900.)

Page 20

CROSS-APPEALS by the relator, The New York Central and Hudson River Railroad Company, and the intervenor, The City of New York, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 7th day of March, 1911, modifying and affirming the assessment of the franchise tax of the relator for the year 1900 upon its railroad in Park avenue extending from the southerly line of Forty-fifth street to near One Hundred and Thirty-third street in the city of New York.

COUNSEL

Ira A. Place [Alexander S. Lyman of counsel], for the relator.

Thomas Carmody, Attorney-General, for the State Board of Tax Commissioners.

Archibald R. Watson, Corporation Counsel [Curtis A. Peters of counsel], for the city of New York.

KELLOGG, J.:

The relator contends that its lessor had a right of way twenty-four feet wide through Park avenue prior to the use or opening of such avenue as a public street, and that, therefore, no franchise tax can be assessed thereon under People ex rel. N.Y. C. & H. R. R. R. Co. v. Woodbury (203 N.Y. 167).

Chapter 263 of the Laws of 1831 incorporating the New York and Harlem Railroad Company, relator's lessor, gave it the right to construct and operate a single or double-track railroad from the north bounds of Twenty-third street to the Harlem river between the east bounds of Third avenue and the west bounds of Eighth avenue. It was to make and file in the register's office a survey and map within six months; commence construction within two years and within four years construct

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its road, which map was not to be filed until approved by the common council of the city declaring that it approved of the map and the route indicated therein, and it was authorized to enter upon and take possession of lands for that purpose, which lands it might acquire by gift or purchase or by condemnation in case of an inability to agree with an owner. Section 10 provided that in case the route was located in or along any public street or avenue now laid out on the map or plan of the city sufficient space must be left in the street or avenue on each side of the railroad for a public highway for carriages and for a sidewalk for foot passengers. Section 11 provided that when necessary it should be lawful, with the consent of the mayor, aldermen and commonalty of the city, to intersect or cross any stream of water or watercourses, or any road, street or highway, provided that it restore the stream, watercourse, road, street or highway thus intersected to its former state or in a sufficient manner not to have impaired its usefulness, and shall moreover erect and maintain sufficient fences along the line of the road. Section 16 provided that nothing in the act should be deemed to authorize the corporation to construct or use its railroad across or along any of the streets or avenues of the city, as designated on the map of the city, 'whether such streets or avenues shall have been opened or not, without the consent of the mayor, aldermen and commonalty of said city, who are hereby authorised to grant permission to the said corporation to construct their said railroad or way across or along said streets or avenues, or prohibit them from constructing the same, and, after the same shall be constructed, to regulate the time and manner of using the same and the speed with which carriages shall be permitted to move on the same or any part thereof.'

The maps were duly filed, approved of by the common council, and the consents mentioned in section 16 were applied for and obtained and the road constructed as a double-track road within the time limit.

Fourth, now Park, avenue was laid out on the maps of the city as a public street in 1811 pursuant to chapter 115 of the Laws of 1807. That act provided that after the map was filed showing the location of the street no compensation was to be

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allowed for any building that might be built or placed in whole or in part on the property laid out as a street after the filing of said map. The several statutes relating to the city were compiled in chapter 86 of the Revised Laws of 1813, and by section 177 et seq. a mode of procedure was provided for opening the streets laid out on the map and vesting the title thereto in the city. Section 178 substantially repeated the declaration that no compensation should be allowed for buildings constructed within the line of the street as shown upon the map. The street was never opened and worked as a public street until 1850, at which time the railroad company was in ...


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