| N.Y. App. Div. | Jun 29, 1910
In an action in the Supreme Court by the Knickerbocker Trust Company, as trustee, against the Brooklyn Ferry Company of New York, to foreclose a second mortgage, an order was duly made October 16, Í906, appointing Joseph J. O’Donohue, Jr., receiver for said company, and he duly qualified and took possession of its assets and continued to hold and manage the property of the ferry company until June 25, 1908, when by virtue of the judgment in
The question presented we think must be considered as settled so far as this court is concerned by Central Trust Co. v. N. Y. C. & N. R. R. Co. (110 N.Y. 250" court="NY" date_filed="1888-10-02" href="https://app.midpage.ai/document/central-trust-co-v-new-york-city--northern-railroad-3612094?utm_source=webapp" opinion_id="3612094">110 N. Y. 250). The only difference we can see between that and this case is that there the receiver was. necessarily actively exercising the franchise of the corporation- in running the railroad. The laws of the State do not contemplate that a private person may operate a railroad carrying persons and property for hire. ( Village of Phoenix v. Gannon, 195 N.Y. 471" court="NY" date_filed="1909-06-18" href="https://app.midpage.ai/document/village-of-phoenix-v--gannon-3576221?utm_source=webapp" opinion_id="3576221">195 N. Y. 471; Trojan R. Co. v. City of Troy, 125 A.D. 362" court="N.Y. App. Div." date_filed="1908-03-23" href="https://app.midpage.ai/document/trojan-railway-co-v-city-of-troy-5206547?utm_source=webapp" opinion_id="5206547">125 App. Div. 362.)
If the statutes have confined the privilege of operating a railroad to railroad, corporations, it is evident that the court cannot authorize its officers to do an act which can only be done by a railroad
Our attention has not been called to any provision of law which prohibits or renders it improper for a natural person to operate a ferry, and it is probable that Mr. O’Donohue as an individual could have operated boats and performed any duty which the ferry company did with reference thereto, and if a natural person could perform such service it is clear that the court could authorize him as receiver to do so in administering a property in court.
■ It is not necessary to decide whether Mr. O’Donohue as receiver could have operated the ferry as such without reference to the franchise granted by the State and thereby have escaped this taxation. The record does not establish the fact that he so acted. We assume that the ferry company was operating its ferry pursuant to law prior to the appointment of the receiver, and had obtained from the local authorities the proper license for that- purpose. The record shows incidentally that it had a franchise from the city of Hew York to operate the ferry from the slip to the foot of Forty-second street. It does not appear that the receiver ever obtained such a license; it was unnecessary for him to do so if he was operating the ferry under the corporate frnchise. If a special license had been obtained by the receiver as an individual or as receiver that fact should have appeared in an effort to declare void the tax levied against the corporation. The plaintiff has assumed to show that the taxing officer acted without jurisdiction. The record fairly implies that the ferry was operated under the corporate franchise. The usual corporate reports and returns were made, and it would be a violence to the fair spirit of the record to say that the receiver was not exercising the corporate franchise in carrying on the ferry. It would have been a violation of law for him to operate the ferry without the consent of the local authorities.
As stated, the inference is irresistible that he was operating, as he had the right do, under the license which had been granted to
I think, therefore, we are justified in saying, within the authority of the Central Trust Co. case, that the tax was properly assessed, and that when the plaintiff purchased the physical property subject to any tax which was a lien thereon it took it with this burden resting upon it. The other questions raised need- not now be considered.
Judgment should, therefore, pass denying any relief to the plaintiff, and determining that the taxes in question are liens upon the several parcels of property sold by the receiver. The plaintiff purchased a • part of the property subject to the lien of the taxes thereon, but did not by the terms of sale, as stated in the record,become personally liable for the payment of the tax. ¡No personal judgment can, therefore, be rendered for the tax. The defendant should recover costs and disbursements of this action.
All concurred.
Judgment ordered for defendant, ás per opinion, with costs.