
    The City of New York, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent.
    
      City of New York v. Brooklyn, Q. Co. & S. R. R. Co., 179 App. Div. 198, affirmed.
    (Argued March 19, 1919;
    decided April 8, 1919.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 18, 1917, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. This action was brought by the city to recover some $800,000, representing percentages of about $350,000 on- gross receipts from the operation of the defendant’s railroads within the city of New York during the six years ending September 30, 1907, and penalties thereon amounting to about $450,000, pursuant to the provisions of section 175 of the Railroad Law as enacted May 18, 1892. The first sentence of that section has read since May 18, 1892, as follows: “ Every corporation building or operating a railroad or branch or extension thereof, under the provisions of this article, or of chapter 252 of the Laws of 1884, within any city of the state having a population of 1,200,000 or more, shall, for and during the first five years after the commencement of the operation of any portion of its railroad, annually on November first, pay into the treasury of the city in which its road is located, to the credit of the sinking fund thereof, three per cent of its gross receipts' for and during the year ending September thirtieth next preceding; and after the expiration of such five years, make a like annual payment into the treasury of the city to the credit of the same fund, of five per cent of its gross receipts.” Plaintiff claimed that assuming that respondent was not subject to this charge when it was incorporated in 1893 or for the period of seventeen years thereafter, during which the population of Brooklyn was less than 1,200,000, it became subject to the charge automatically when the population reached that figure, and, similarly, even if this contention be unsound, respondent became liable to this charge when it extended its operations and entered the borough of Manhattan, for then it was operating a railroad in a city whose population exceeded 1,200,000.
    
      William P. Burr, Corporation Counsel (Terence Farley and William E. C. Mayer of counsel), for appellant.
    
      Charles A. Collin, John L. Wells, Thomas L. Hughes, Charles L. Woody and George D. Yeomans for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Cuddeback, Hogan, McLaughlin and Crane, JJ. Not voting: Collin, J.  