
    The People of the State of New York ex rel. New York, Westchester and Boston Railway Company, Appellant, v. Charles H. Hyde, Chamberlain of the City of New York, and David E. Austen, Receiver of Taxes of the City of New York, Respondents.
    First Department,
    March 10, 1911.
    Tax — special franchise of railroad — right to cross city streets — credit for sums paid to city pursuant to ordinance — valuation of special franchise.
    Where by virtue of a municipal ordinance a railroad has acquired a right to construct and operate its road upon and across streets on condition that it pay certain sums annually to the city, and the State Board of Tax Commissioners in determining the value of the railroad's special franchise in the municipality has included therein the right to cross said streets and1 the city has assessed the railroad for its special franchise according to the valuation certified by the State Tax Commissioners, the railroad is entitled to credit for the payments made by it to the city pursuant to the ordinance.
    As the railroad possesses by one grant from one authority a single right or privilege to operate across the streets specified, this right is a single special franchise, so far as the city is concerned, and the value thereof should be determined as a a whole, not apportioned among the several street crossings as if each were a separate special franchise.
    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.
   McLaughlin, J.:

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 Hew 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 Hew York with the department of taxes and assessments. Thereafter the city of Hew 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 2-elator thereupon 2nade a motion for a peremptory writ of mandamus to compel the chatnbei-lain to make such certificate and the receiver of taxes to give such ci-edit. The motion was dénied, and the appeal is Í2-om the orde2\ 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 a2iy special fra22chise is due and payable under the provisio2is of law applicable to the city, * * * in which the tangible property is located, it shall appeal- that the * * * corporation affected has paid to such city, * * * for its exclusive use within the next preceding year, under any agreement therefoi-, * * * 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 Commissioners for city * * * purposes; * * * and.the remainder shall be the tax on such special franchise payable for city * * * purposes. The chamberlain or treasurer of a city * * * shall, not less than five nor more than twenty days before a tax on a special franchise is payable, make and deliver to the *. * * receiver of taxes * * * his certificate showing the several amounts which have been paid during the year ending on the day of the date of the certificate. On the receipt of such certificate the * * * receiver * * * shall immediately credit on the tax roll to the * * * corporation affected the amount stated in such certificate, on any tax levied against such * * * corporation on an assessment of a special franchise for city * * * purposes only, but no credit shall be given on account of such payment or certificate in any other year, nor for a greater sum than the amount of the special franchise tax for city * * * purposes, for the current year; and he shall collect and receive the balance, if any, of such tax as required by law.” The payments made by the relator to the city of Hew York under the ordinance are such payments as it is entitled to have credited against the tax levied upon its special franchise. (People ex rel. Nassau Electric R. R. Co. v. Grout, 119 App. Div. 130 ; affd., 189 N. Y. 510 ; Heerwagen v. Crosstown St. R. Co., 90 App. Div. 275 ; affd., 179 N. Y. 99.) This, I do not understand the city disputes. What it does claim is that the amount paid by the relator should be apportioned among all the crossings of streets described in the ordinance and amendments thereto; in other words, that each crossing constitutes a special franchise and that a certain amount should be fixed as the rental for each crossing, irrespective of whether the same is used or not, and that as the State Board of Tax Commissioners has valued but thirteen of such crossings out of one hundred or more enumerated in the ordinance, the relator was not entitled to have the full amount paid certified ; that its remedy is to apply to the receiver of taxes to apportion the $8,000 yearly payment among all the crossings named in the ordinance and to credit against the thirteen only the respective amounts apportioned to them.

The statute, as I read it, does not contemplate any such apportionment, nor do I think the receiver of taxes has any authority to make it. (People ex rel. New York Central & H. R. R. R. Co. v. Gourley, 198 N. Y. 486.) The city granted the right or privilege to the relator to cross all of the streets referred to in the ordinance and the amendments thereto, for which it agreed to pay $8,000' for tlie first ten years, $16,000 for the succeeding fifteen years, and certain additional compensation after it commenced to operate the road. It was for this right or privilege that it paid $8,000 during the year 1908 and a similar amount during the year 1909. The relator possesses by one grant, from one authority, one right or privilege, which is to operate the railroad referred to in the public streets of the city. This constitutes its special franchise so far as the city is concerned, and for the purposes of taxation the value of such right or privilege must be determined as a whole.

The learned justice sitting at Special Term, as appears from his memorandum, denied the motion on the authority of People ex rel. New York Central & H. P. P. R. Co. v. Courley (supra). I do not think this authority justified the denial of the motion ; on the contrary, it seems to me it is an authority in favor of the relator’s position. In that case the West Shore railroad ran through the town of Haverstraw and the villages of Haverstraw and West Haverstraw. The State Board of Tax Commissioners assessed the relator on its special franchise in the town of Haverstraw, which included nine crossings (seven in the village of Haverstraw and two in the village of West Haverstraw). The assessment fixed the valuation of the special franchise in the town at $25,400. The assessors of the village of Haverstraw determined that their proportion was $16,800 and fixed the assessment at that amount, and the assessors of the village of West Haverstraw determined that their proportion of the total assessment was $7,250, and fixed the assessment at that amount. It was held that the village assessors had no power under the statute to determine the valuation or to make such assessment; that it was the duty of the State Board of Tax Commissioners to certify to the town clerk separately the value, in gross, of the special franchise within each village of the town as determined by them, in order to enable the assessing officers of such villages to perform the clerical duty of entering upon the assessment rolls the amounts belonging thereto. While it is true that the court did hold that each separate crossing or highway occupation constituted a separate special franchise, it was, as it seems to me, with reference to the particular question there presented, which was that all of the crossings in each village constituted a special franchise, the value of which had to be separately ascertained; otherwise it would be impossible for the village assessors to impose a tax for local purposes. Judge Geay, who delivered the opinion of the court, said : “ I think that the provisions of the statute imposed the duty upon the State board of tax commissioners, in such a case, to state in their notice, separately, the valuation in gross of the special franchise of the relator within each village of the town, as determined by them ; in order that the assessing officers of these separate taxing districts might be able to perform the clerical duty of entering upon their assessment rolls the amount belonging thereto. Had that been done, of course, no question could have arisen with respect to the apportionment of the town assessment upon the relator’s special franchises ; but it was not done and the consequence was that the local assessors were left to perform a duty of fixing the valuation of the relator’s special franchise in the village of Haverstraw, which should have been performed by the State board. This was a function judicial in its nature, which the assessors were not legally capable of performing; inasmuch as it was not provided in, nor intended by, the law that they should act otherwise than ministerially and clerically when dealing with the assessment of special franchises in their village.”

The State Board of Tax Commissioners assessed the special franchise of the relator as an entirety and fixed the value as it now exists at $364,900 in each of the years 1908 and 1909. It was upon this valuation that the city of Hew York imposed the taxes, and it seems to me that under the statute the relator was entitled to have the $8,000 per year which it paid under its agreement with the city, or so much thereof as equaled the amount of tax imposed, credited to it by the receiver of taxes. Besides, to make an apportionment among the different streets, as suggested by the city, would be doing precisely what the Court of Appeals condemned in the Gourley case.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Claeke, Scott, Millee and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and ■ motion granted, with ten dollars costs.  