123 N.Y.S. 436 | N.Y. Sup. Ct. | 1910
This is a certiorari proceeding to review the action of the State Board of Tax Commissioners in assessing as a special franchise the right of the relators to maintain a tunnel or passageway under Livingston street and between their buildings on each side thereof; the whole property, including both buildings and the passageway, being used for the purposes of a retail dry-goods store. The right was granted to the relators by resolution of the board of estimate and apportionment dated December 15, 1905, and applied to that portion of the land under the street which is owned in fee by the city of Mew York.
Whatever right the relators acquired under the resolution of the board of estimate and apportionment of December 15, 1905, does not constitute a special franchise and is not taxable as such. This species of property was first subjected to taxation by chapter 112 of the Laws of 1899. The act is entitled “An act to amend the tax law, in relation to the taxation of public franchises as real property.” It did not purport to and did not render taxable anything except “ public ” franchises, including therein tangible property in the streets used in connection therewith. This does not include easements, licenses, leasehold interests, or any other rights unless they fall within the definition of a franchise.
It is not necessary to consider what, if any, rights the relators secured under the resolution. The city is not only a governmental agency, but a proprietor. It owns as proprietor the fee of a strip of land thirty feet wide under the southerly portion of Livingston street. Its ownership is in trust for highway purposes for the benefit of the public. Because the trust is for the people at large and not for the city or the. inhabitants of the city, the control of the streets is vested primarily in the Legislature; but the city has power to grant certain licenses and privileges therein, provided the same do not interfere with the rights of the public, and such power has been long exercised. Granting the right to construct vaults under the sidewalks is one of the-most common methods of exercising the power. I suppose that, although the city holds the fee in trust for street purposes, it has all
The assessment is illegal and must be stricken from the rolls, with costs to the relators.
Assessment stricken from the rolls, with costs to relators.