130 N.Y.S. 359 | N.Y. App. Div. | 1911
Prior to April 15, 1908, the defendant, under a franchise from the plaintiff, maintained and operated a single-track surface railway on State, Eddy and Tioga streets in the city of Ithaca. Upon that day it applied to' the plaintiff for permission to construct and maintain a double-track railway upon some of said streets, and a franchise was granted it by the plaintiff on or about May 13, 1908, and formally accepted by the defendant June 3, 1908. The 18th section of said agreement or franchise provided in substance that the' railway company should pay to the city on or before October first, in each year, the sum of $500 per year for fifty years, and thereafter the sum of $750 per year during the lifetime of the franchise, ‘c such payments to be chargeable against -the earnings and assets of the Company operating the franchise as taxes are chargeable and to be in addition to all franchise or other taxes and assessments imposed.by law.”’ .
At and prior to that time section 48 of the Tax Law was in force, which provided in effect that if a corporation assessed for a special franchise shall have paid' to the city, town or village within the next preceding year “ under any agreement therefor or under any statute requiring the same 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 person, copartnership, association or corporation, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city, town or village, except money paid or expended for paving or repairing of pavement of any street, highway or public place, shall be deducted from any tax based on the assessment made by the State Board of Tax Commissioners for city, town or village purposes', but not otherwise, and the remainder shall be the tax on such special franchise payable for city, town or village purposes.” ' •
The defendant contends that having paid the $500 the preceding year, it is entitled to have that amount deducted from
The stipulation of submission .provides that if the controversy is determined in favor of the plaintiff it shall have judgment for $1,820, without costs.
Judgment is, therefore, awarded to it for that sum.
Judgment awarded to the plaintiff for $1,820, without costs.