
    The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Appellant, v. James Gourley and Others, Assessors of the Village of Haverstraw, Rockland County, New York, and Henry F. Dorl, Clerk of Said Village, Respondents.
    Second Department,
    December 30, 1909.
    Tax — franchise tax — gross valuation of several franchises by State Tax Commissioners — apportionment of assessment by village assessors.
    Where the State Board of Tax Commissioners has assessed the franchise tax of a corporation owning nine special franchises lying within a town at a gross sum, without placing a value upon the separate franchises, and some of the special franchises lie wholly within one village and the others wholly within another village, the village assessors have no power to split up the gross valuation and apportion it between the villages. .
    Appeal by the relator, The Mew York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 15th day of October, 1909, denying the relator’s motion to strike from the assessment roll of the village of Haverstraw a special franchise assessment against the West Shore Railroad Company, the relator’s lessor, and dismissing a writ of certiorari theretofore issued herein. '
    The opinion delivered at Special Term is reported in People ex rel. N. Y. C. & H. R. R. R. Co. v. Gourley (64 Misc. Rep. 605).
    
      
      George H. Walker [Alexander S. Lyman with, him on the brief], for the appellant.
    
      Alonzo Wheeler, for the respondents.
   Thomas, J.:

The Tax Law provides for the valuation of special franchises by the State Board of Tax Commissioners, the transmission of notice thereof to the clerk of the city, town or tax district, and that such clerk shall pass the valuation on to the local assessors of tax districts, villages and the commissioners of highways. No difficulty arises if the entire special franchise is in- one district, and if there be a village, if it be entirely within the village. If -only part of it be within a village, the village assessors ascertain what portion of the valuation shall be used for village purposes (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap; 908], § 42, added by Laws of 1899, chap. 712, and amd. by Laws of 1904, chap. 382; revised in Tax Law [Consol. Laws, chap, 60;. Laws of 1909, chap.. 62],. § 43, as amd. by Laws of 1909, chap. 275). There is no recognition of conflicting interests and no provision therefor. In the present case the West Shore railroad • runs through the town of Haverstraw and owns nine special franchises separately enumerated by the State Board and valued at the gross sum of $25,400. Seven of these franchises are entirely within the village of Haverstraw and two are entirely within the village- of West Haverstraw. The assessors of the village of Haverstraw have placed upon their .tax roll $1(5,800 of the -valuation, while the assessors of the other village have placed upon their assessment roll $7,250 of the valuation, leaving $1,350 of the entire valuation not appropriated by either village. The relator contends correctly that these several boards of local assessors had no power to split up the. gross valuation and appropriate portions thereof. Mr. Justice Booebs in People ex rel. N. Y. C. & H. R. R. R. Co. v. Keno (61 Misc. Rep. 345) decided the question now presented favorably to"the relator. Without repeating the considerations that moved the learned justice in that case, I think that a simple discussion of the nature of special franchises as revealed by the statute will aid that conclusion. A special franchise, as related to the railway in question, is defined by the statute (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 2, subd. 3, as amd. by Laws of 1899, chap. 712; Id. subd. 4, added by Laws of 1901, chap. 490, and amd. by Laws of 1907, chap. 720, and Laws of 1908,. chap. 295; revised in Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 2, subds. 3,4), and in brief is the' conferred right to occupy the public ways and places of a municipality for the construction and operation of a railway, and to the value of the right the value of the occupying structures is added for the purposes of taxation. The' premises to be valued are in severalty, and presumably unequal, as the places and ways are diversified, and structures occupying the same are or may be unequal in nature, dimensions, cost and consequent value. Therefore, it would be necessary for the State Board to appraise separately the value of each special ■ franchise and the tangible property connected therewith. Indeed, certain rights and occupations by subdivision 4 of section 2 are exempt from assessment, showing that the items of valuation had distinct identity. The State Board appreciated this by stating' nine separate items, but aggregated the value of the same at $25,400, located as above stated. Ho difficulty .would arise from uniting the assessments in one sum, if all the items were in one town, city, tax district or village, nor would there be difficulty if, in the present case, all were partly within the "village of Haverstraw and partly within the town of Haverstraw. Section 42 (now section 43) in that case would give the assessors of the village the power to determine what portion of the valuation should be placed upon the tax roll for village "purposes, and there would' be no conflict of jurisdiction and no opportunity for duplicate appropriation of the valuation. If part of one special franchise were in one village and part in the other, according to the respondents’ contention, two boards of assessors would have coequal and concurring power to distribute the valuation, and the statute does not in such case endow the local assessors with power to act. But in the present case the situation is that there is no sharing by the two villages in .a special franchise, for one village contains all of two franchises and one contains all of seven franchises, and all nine are unified in a single valuation by the State Board. What valuation the State Board placed upon each of these nine 'franchises does not appear. The statute does not enable the village assessors of either or both villages to apportion this gross valuation, nor are there data, that is, valuations of items, upon which the local officers could intelligently and justly make distribution. In fact, the local assessors are not permitted to have any knowledge of the subject. To allow the assessors of the several villages to apportion the gross valuation would be to allow them to ascertain and fix the valuation of the items in the two villages and state the ratio of each to the gross valuation made by the State Board. The statute provides no machinery for this, and stich undertaking would be quite beyond the very limited powers intended to be conferred upon the local assessors.

The order dismissing the writ should be reversed and the matter remitted to the Special Term for disposition, pursuant to the present direction, with costs, and with costs of this appeal..

Jenks, Rich and Miller, JJ., concurred.

• Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term.  