
    The Jamaica & Brooklyn Road Co., App'lt, v. The City of Brooklyn, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    Taxes—Exemptions op turnpike—Laws 1854, chap. 87, and Laws 1835, chap. 546.
    The remedy of a turnpike company claiming exemption from an assess-' ment undir Laws 1854, chap. 87, as amended by Laws 1855, chap. 546, is confined to the appeal to the county judge, which the statute declares “ shall be final.” The company cannot rely upon a notice given in advance to the assessors that its property was exempt from taxation, and years after, upon finding that its property had been taxed and sold, come into a court of equity for relief on the ground that in fact it was entitled to the exemption.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of defendant entered upon decision rendered by the court without a jury.
    
      Edward 8. Clinch, for app’lt; Wm. T. Gilbert, for resp’t.
    
      
       Affirming 17 N. Y. State Rep., 649.
    
   Andrews, J.

This is an action for equitable relief to procure the cancellation of taxes, assessments and water rates imposed by. the city of Brooklyn in the years 1881, 1882, 1883, 1884, 1885 and 1886, upon the property of the plaintiff, and to vacate sales of the plaintiff’s property for the non-payment thereof. The plaintiff is both a turnpike and railroad corporation and as such maintains a turnpike road partly within and partly without the city of Brooklyn, in connection with a tramway.

The taxes, assessments and water rates in question were assessed upon the lands of the plaintiff embraced in its turnpike road within the city. It is claimed in behalf of the plaintiff that the property was exempt from taxation under the provisions of § 4, of chap. 87, of the Laws of 1854, as amended by chap. 546 of the Laws of 1855. That section is as follows: “Section 4. Toll houses and other fixtures and all property belonging to any plank or turnpike company shall be exempt from taxation or assessment for any purpose whatever, until the surplus annual receipts of tolls on their respective roads over necessary repairs and a suitable reserve fund for repairs and relaying of plank shall exceed 7 per cent, per annum on the first cost of such road. In case of any disagreement between the assessors of any town, village or city and any such company concerning such exemption claimed, said company may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to the appealing party of such appeal, examine the books and vouchers of such company, and take such further proof as he shall deem proper, and shall decide whether such company is liable to taxation under this section and his decision shall be final.”

The trial judge found that the surplus annual receipts of tolls on the plaintiff’s turnpike road, in each of the years mentioned except 1881, exceeded the limit in the statute. This finding was based upon the construction that in ascertaining under this statute the surplus annual tolls collected and received by the plaintiff, only two items are to be deducted from the gross receipts, viz., the sum actually expended for necessary repairs during the current year, and in addition such sum, suitable in amount, as had been appropriated and laid aside by the company for future repairs, and that no deduction could be made for the expenses of collecting tolls, or for any current expenses except for necessary repairs.

The counsel for the plaintiff insists, that reading the statute in the light of the prior legislation, the intention, although obscurely expressed, was to exempt plank and turnpike roads from all taxation, unless the clear net annual income exceeded seven per cent, on the original cost of the road, to be ascertained by deducting from the gross annual income all expenses of operation and maintenance actually paid and also such amount as was immediately needed for repairs or to pay any debts incurred therefor, but not paid, and a suitable reserve fund for future repairs.

We deem it unnecessary to pass upon the trac construction of the statute in the respects indicated.

It is, we think, a decisive answer to the action, as based upon the claim that the plaintiff was exempt from all taxation in the years mentioned, that the same statute which gives the exemption points out the remedy in case of controversy. That remedy is an appeal by the company claiming exemption from an assessment to the county judge, who is authorized to hear the parties and determine the controversy upon -evidence, and his decision, the statute declares, “shall be final.” The remedy is adequate and convenient, and is, we think, exclusive.

The plaintiff could not pass by the tribunal especially created by statute to determine its claim to exemption, and resort to. an action to enforce the privilege which the statute confers, in face of the clear legislative intention to be inferred from the conjunction of the two clauses, that the privilege and the remedy both given by the same statute should go together. The case of The People ex rel. Mutual Union Telegraph Co. v. Commissioners of Taxes, 99 N. Y., 254, was decided upon an analogous principle, and other adjudications support the same conclusion. People v. Wall Street Bank, 39 Hun, 525; Davis v. Macy, 124 Mass., 193; Stewart v. Maple, 70 Pa. St., 221.

The assessment of the plaintiff was of record. So far as appears it had the notice of the proceedings of the taxing officers given to all owners of property. It was its duty, if it claimed exemption under the statute, to have ascertained whether its property was assessed, and to have taken proceedings under the statute to have the question of exemption determined. It could not rely upon a notice given in advance to the assessors that its property was exempt from taxation, and omit subsequent inquiry, and then after the lapse of years, upon finding that its property had been taxed and sold, come into a court of equity for relief on the ground that in fact it was entitled to the exemption. This conclusion we think disposes of the case.

But it is now claimed that the action is supported on an independent ground, and that is, that assuming the plaintiff’s property was taxable, the taxes were illegally laid by reason of a departure of the assessors in assessing the property from the mode of assessment prescribed by statute, and in respect to the water rates that there was no right to impose them, because the property was vacant, and therefore not assessable for water rates under our decision in Remsen v. Wheeler, 105 N. Y., 579; 8 N. Y. State Rep., 202.

These objections were plainly afterthoughts, and the questions thus raised are not within the issues made by the pleadings or tried by the court. The complaint sets out at great length facts showing that the plaintiff has succeeded to all the rights and exemptions possessed by certain other plank road and turnpike companies, and this is followed by a general allegation that, contrary to the statute, taxes, assessments and water rates were assessed upon its property and sales made thereunder, which are clouds upon its title, and concludes with a prayer for their cancellation and an injunction against the imposition of any tax, assessment or water rate upon its property. There is no hint that there is any ground for relief except under the exemption statute.

■ On the trial, the plaintiff gave evidence of the devolution of its title and of the facts bearing upon its right to exemption from taxation. The map and exhibits which are now claimed to show that the assessments were irregular were apparently introduced to identify the property taxed and sold and as to which the plaintiff claimed relief in case the right of exemption was established. On the submission of the case, the plaintiff’s counsel requested a finding that the assessments were made, not upon the property of the plaintiff as an entirety, but “ upon separate and distinct portions thereof arbitrarily divided and laid out by the agents and officers of the defendant, and in such way tfiat some parts of the road were not in any respect assessed.” There is no evidence to support the part of the proposed finding that the assessors arbitrarily subdivided the land into lots, or as to who made the subdivisions, and this request was properly refused, and an exception to the refusal to find this request furnishes the only basis for a review of the case as to the mode of assessment.

The plaintiff also excepted to the refusal of the court to find that the property was vacant. It was not vacant in any legal sense. It was used by the company for its road. Upon this exception the plaintiff’s counsel argue the illegality of the assessment for water rates.

We think no question is legitimately ,in this case except the one arising on the claim that the taxes were illegally assessed because of the exemption in the statute of 1855, and the action in this aspect fails because the plaintiff was bound to pursue the remedy therein provided.

The judgment should be affirmed.

All concur.  