
    The City of New York, Respondent, v. Manhattan Railway Company, Appellant.
    First Department,
    May 24, 1907.
    Railroad — charter of West Side and Yonkers railroad construed—. • money payable by said road, to city of New York to be based upon net income, from, passenger traffic only — certain disbursements not to be deducted.in ascertaining said profit.
    Section 9 of chapter 489 of the. Laws of 1867, requiring the West Side and' Yonkers Patent Railroad Company to pay five per cent of its net income from “passenger traffic”.to the city of New York,, determines-the burden imposed upon that road., and section 2 of' chapter 855 of the Laws of 1868, providing that said company shall-in the month of January and quarterly thereafter pay to the city five per cent of its net income for the purposeof street improvements, regulates merely the time of payment.
    As under said statutes said road and its successors in interest were required to pay a percentage of its net profit front passenger traffic only, the Sttc66886t df said road is not entitled td have deducted from its gross ideóme its disburse» inents in relation to its general business, sums paid for damages to abutting owners for trespass and interest on money'bor-rowed for the construction of its roads. Such items, though relevant' in ascertaining the net income of its entire business, are not relevant in determining thé net income from passenger ■ traffic only.'
    Appeal by the defendant, the. Manhattan Railway Company, from a judgment of the Supreme Court iil favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of February, 1905, upon the report of a referee.
    
      Julien T. Davíó's, for the appellant.
    
      Theodore Gonnol/y, foi: the respondent.
   Ingraham, J.:

The question presented upon this appeal depends, upon the construction to he given section 9 of chapter 489 Of the Laws of 1867; . and section 2 of chapter 855 of the Laws df 1868. By the-act Of 1867 the West Side and Yonkers Patent Railway Company was authorized- to construct an elevated railroad id the city of New York. Section 9 of that act provided that “ the said- company shall pay a sum of five per cent of the net income of said railway from passenger traffic upon Manhattan Island, as aforesaid, into the treasury of the city of Hew York, hi such manner .as the Legislature may hereafter direct, as a compensation to the Corporation thereof, for the use of the streets aforesaid;” The railroad com» pany did not comply with the provision of this act to complete the railroad -within one year from the date of its passage, and there was then passed: an act (Laws of 1868, Chap..' 855j which extended the time within which the railroad company cOuld construct. the road; authorized a change df the motive powerand provided : “ § 2. In pursuance of section nine of the act aforesaid it is hereby directed that the said constructing company or its successors shall, in the month of January ill- each -year and quarter annually thereafter, pay to the comptroller of the city -of New York five per cent of its net income for the purpose of being expended in the improvements of the condition or appearance of the streets or parts of streets' or avenues or places through which said railway shall be constructed,” and, this action was brought to recover the amount required to be paid by the railroad company to the city Of New York under the provisions of these two sections. The railroad was subsequently' constructed and the rights acquired by the West Side and Yonkers Patent Railway Company havbecome vested in the defendant, the Manhattan Railway Company. There was ari appeal from an interlocutory judgment in this case, which was determined by the Court of Appeals in Mayor, etc., of New York v. Mamhattan R. Co. (143 N. Y. 1). It .was there held that the right of the plaintiff to recover depends upon .section 9 of the act of 1867, and in relation to that section the court said : “ But as the corporation was given .by the act various powers and privileges, it was certainly appropriate, even though not necessary, to state the burdens or.conditions which were . to be imposed upon the corporation in return. * * * The bnr- ■ den was plainly and in terms imposed, but the time and manner of payment were j.ust as plainly stated to be as the Legislature' should thereafter direct. ■ * * *. Thé only effect that can be given to it is to put off the immediate obligation.to pay until the Legislature at some future time gave directions upon the subject. * * * The burden of paying the five per cent was imposed upon the. corporation by the act of 1867, and that obligation has been a valid and subsisting one ever since the passage of that act. It was not a creation of the act of 1868, for that act simply gave formal directions in regard to the manner in which a previously existing legal Obligation should be discharged.” We thus see that the burden which was imposed upon the defendant was the burden imposéd by the- 9th section of the act of 1867, the time of payment of which was regulated by the act of 1868, so that the extent of the burden imposed upon the road is determined by the provisions of the act of 1867. '.

• By the act of 1867 the railroad company was required to pay the sum of “ five per cent of the net income of said railway from passenger traffic upon Manhattan Island.” The obligation of the' defendant is not restricted, as claimed by the learned counsel for the defendant, to a percentage upon the- net profits of the corpora-, tion as distinct from a percentage on the net profit of said railway from passenger traffic, and if: there is any distinction to be drawn between these phrase's,'the obligation-having been imposed'by. the act of 1867, the liability of the defendant must depend -upon that obligation. The questions on this appeal relate to three items which the defendant claims the referee should have deducted from the gross, income to. ascertain the amount of net income; .

The first of these items is the taxes imposed on and paid by the defendant corporation. . The referee found during the period embraced in this accounting, .that there was. paid by the defendant or its predecessors in respect to this portion of the- defendant’s rail-' way to which this accounting relates, certain annual taxes, the amount of which is stated in.the finding^ ft seems that these taxes were imposed upon the defendant as taxes based upon its railway used in connection with the-operation of that portion of its road assessed as real estate. There would also seem to be a corporation, tax; a tax upon the capital .stock,, and for some portion of the period a franchise tax. These taxes the referee refused to allow the defendant in ascertaining the net profits. The question is not as to the net income of the corporation upon which it is entitled to base the amount of money distributable to its stockholders or in'determining whether or not its operations as a whole have been successful. In other words, it is not the net income of the corporation resulting from all its business, but the net income reeeive'd by the railway from passenger traffic. It Would be clearly improper to include in this a charge against the corporation: any income that it should receive from sources other than the payment by passengers for , passage upon its railroad. A Corporation may receive income for advertising privileges; for rentals of its real estate and other sources to which it would be entitled, and upon such income no charge could be based. On the other hand,, its disbursements in relation to its-general business; the salaries of its officers; the taxes that it is required to pay; legal and other incidental ^expenses are general charges against the corporation as the owner of property or " "as enjoying a franchise or right to exist as a corporation. .Neither are to bé included in ascertaining what its net income for its passenger traffic is.,

An entirely different question would be presented if we were required to ascertain a percentage of the net income of the corporation, the net income of the property owned by the corporation, but where the obligation is to pay a percentage of the net income received by the railway from passenger traffic, that must be ascertained- by taking the gross income from passenger traffic and deducting from that the cost to the road of conducting the passenger traffic as distinct from the cost to the company in its general operations. I think it can hardly be said that the cost to the road of the salary of its general officers; the legal expenses in defending suits against it, and general expenses of that kind should be deducted from the gross receipts from ' passenger traffic, and yet I can see no reason why such general administrative expenses of the corporation are not upon, the same basis as the taxes that tlie corporation pays because it owns property or exercises a franchise.

The second item that it is claimed the referee erroneously refused to deduct is that paid by the defendant for what is called rental damage to abutting owners for the trespass upon their interest in the streets. But the foundation of these claims was not for rent but for trespass by the corporation upon the property of tlie abutting owners in the street. They had nothing to do with the operation of the roád, nor with its passenger traffic. It was a general charge against the company for the Unauthorized use of the streets, and has no' relation to its passenger traffic.

The remaining claim of the defendant is that the interest on its mortgage, bonds or. other money borrowed for the construction of its road should have been deducted. But what has been said before, I think, disposes of this claim.. It was a general charge of tlie company and had no relation to the income of the company received'from its passenger traffic.

Our conclusion, therefore, is. that the referee was right and the judgment should be affirmed, with costs.

Patterson, P. J., McLaughlin, Clarke and Lambert, JJ., concurred. *

- Judgment affirmed, with costs.  