
    In the Matter of the Application of New York Railways Company, Appellant, for a Writ of Mandamus, Peremptory or Alternative, Directed to William A. Prendergast, as Comptroller of the City of New York, and Others, Respondents.
    First Department,
    April 7, 1916.
    Tax — franchise tax — right of railway company to have payments made to city for right to cross bridge deducted from franchise tax under section 48 of Tax Law—special franchise — sufficiency of moving papers on application for mandamus — estoppel.
    The right of a railway company, not in connection with its tangible property, but given solely by a contract to operate cars over a bridge on tracks owned by a city, does not constitute a special franchise within the meaning of subdivision 3 of section 3 of the Tax Law, and payments made by such company to the city under its contract, not being shown to have been in the nature of a tax, cannot be credited on the franchise tax by virtue of section 48 of the Tax Law.
    Papers on an application for a writ of mandamus examined, and held, insufficient to establish that the right to operate ears over the bridge was assessed as a special franchise during the years for which the railway company claims a reduction.
    The fact that the city has credited what it has received from certain corporations for the right to operate cars over the bridge against their special franchise taxes does not estop it from denying the right to another corporation.
    Appeal by the petitioner, New York Railways 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 5th day of January, 1916, as resettled by an order entered in said clerk’s office on the 13th day of January, 1916, denying its motion for a writ of mandamus.
    
      Ralph Norton, for the appellant.
    
      Addison B. Scoville, for the respondents.
   McLaughlin, J.:

This appeal is from an order denying an application for a writ of mandamus to compel the respondents to credit against the special franchise taxes of the appellant for the years 1912,1913 and 1914 certain bridge tolls paid by it to the city of New York under a contract for the operation of cars over the Williams-burgh bridge.

On the 21st of May, 1904, the city of New York entered into a contract with the New York City Railway Company, by which the latter acquired the right to operate its cars over the Williamsburgh bridge for a term of years upon tracks constructed and owned by the city, paying therefor five cents per round trip for each car operated. The appellant has succeeded to the rights of such railway company. By the same contract a similar right was given to other corporations. The amounts sought to be credited are $10,292.25 paid up to March 31,1912; $22,205.45 paid up to March 31, 1913; and $20,535.75 paid up to March 31, 1914. The right to have these amounts credited is claimed under and by virtue of section 48 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62). This section provides in substance: “If, when the tax assessed on any special franchise is due and payable under the provisions of law applicable to the city, town or village 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 based upon a percentage of gross earnings, or any other income, or any license fee, or 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, but not otherwise * *

In order to have the amounts thus claimed credited under this statute it must be made to appear that the right of the appellant to operate its cars over the Williamsburgh bridge is a special franchise; that the payments made to the city on account of such operation are in the nature of a tax and that there has been a special franchise tax assessed against the appellant on account of such right.

It has been determined by this court that the right acquired by the appellant under the contract referred to did not give to it a franchise to operate its cars. (Schinzel v. Best, 45 Misc. Rep. 455; affd., on opinion below, 109 App. Div. 917.) The appellant, however, contends that the determination thus made only goes to the extent of holding that the right to run cars over the bridge is not a formal franchise as the same is defined in sections 73 and 74 of the Greater New York charter (Laws of 1901, chap. 466, as since amd. by Laws of 1905, chaps. 629, 630), but that it does constitute a special franchise as defined and made taxable by the Tax Law; that there is a difference between the two terms, the latter being much broader than the former; that the right thus given is a special franchise within the definition of subdivision 3 of section 2 of the Tax Law and taxable as such. In support of this contention our attention is called to People ex rel. Metropolitan St. R. Co. v. Tax Comrs. (174 N. Y. 417); People ex rel. East River Terminal Railroad v. Tax Comrs. (160 App. Div. 771), and People ex rel. United Natural Gas Co. v. Priest (152 id. 249). These authorities do not, I think, sustain the contention. In each of them the rights held to be special franchises and taxable as such were exercised only in connection with the ownership of tangible property, such as tracks upon or pipes laid under the street. In the present case the only right which the appellant has is one not in connection with its tangible property, but given solely by a contract to operate cars on the Williamsburgh bridge on tracks owned by the city. Such right, it seems to me, does not come within the definition as found in the subdivision of the section of the Tax Law referred to. The opinion in People ex rel. Interborough Rapid Transit Co. v. Tax Comrs. (126 App. Div. 610; affd., 195 N. Y. 618), as I read it, supports this view, as well as the language used in section 48 of the Tax Law.

It is further claimed on the part of the appellant that the moving papers show clearly and conclusively that the right to operate cars over the bridge was assessed as a special franchise during the years named. If this be so, then under the authority of People ex rel. Nassau Electric R. R. Co. v. Grout (119 App. Div. 130; affd., 189 N. Y. 510) the respondents are estopped from denying that the right is in fact a special franchise and are obligated to make the credits demanded. The answer to this claim is that such fact does not appear from the papers used upon the motion. The proof presented bearing upon that question is not of such a character as entitled the appellant to .the relief demanded. The facts set forth are on information and belief and the sources of the information and the grounds of the belief are not given. That such proof was insufficient to authorize the granting of a motion for a mandamus was held in People ex rel. Bourke v. Grout (107 App. Div. 228) and People ex rel. Keating v. Prendergast (151 id. 541).

But it is urged that these authorities ought not to be held controlling since the allegations referred to show in the only manner possible that the right has been so assessed. In this connection attention is called to the fact that the moving papers contain positive allegations that such right was so assessed, as established in certain litigated cases involving the assessments for 1910 and 1911; that in 1912, 1913 and 1914 the city voluntarily credited tolls paid by other corporations for operating cars over the bridge under the same contract against their special franchise taxes. But, obviously, what may have been determined as to the assessments in 1910 and 1911 is no proof whatever as to what was included by the State Board of Tax Commissioners in its assessments for 1912, 1913 and 1914. Nor does the fact that the city has credited what it has received from other corporations for the right to operate cars over the bridge against their special franchise taxes estop the city from denying the right of the appellant to have what it paid credited towards its special franchise taxes. Under the contract the appellant agreed to pay to the city a certain sum for the right to run cars over the bridge. It ought not to be relieved of that obligation unless it has paid an equivalent sum by way of taxes for such right and that fact does not appear from the moving papers, for which reason the writ was properly denied.

The order appealed from, therefore, is affirmed, with ten dollars costs and disbursements.

Clarke, P. J., Dowling, Smith and Davis, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       See Laws of 1914, chap. 467, since adding to Greater ÍT. Y. Charter, § 74—[Rep.
     