146 N.Y.S. 112 | N.Y. App. Div. | 1914
Prior to February 16, 1910, relator was maintaining certain railroad tracks upon and over certain streets in the borough of Brooklyn, and was operating cars over the same with steam as a motive power. Seven of these tracks crossed Kent avenue, between North Third and North Fourth streets; four of these tracks crossed Wythe avenue, which is the next avenue east of and parallel to Kent avenue, and were continuations of some of the tracks crossing Kent avenue to the west,
In the year 1910 the State Board of Tax Commissioners assessed relator for a special franchise in connection with constructing, maintaining and operating these tracks, and also certain scales used in connection therewith, situated in some of these streets, in the sum of $75,000. Both relator and respondent agree that the use of the "railroad crossings hereinbefore specifically described as the twelve tracks between North Third and North Fourth streets constitute a special franchise, subject to assessment for taxation at the amount of $10,200. Relator denies that it is subject to assessment or tax as to the remainder of the tracks across or upon either of the other streets or upon the scales, but at the same time it does not dispute the amount
. Although relator is still maintaining and operating a railroad over and through such streets, it now contends that its so-called certificate of extension, filed in the autumn of 1909, purporting to amend its charter, is inoperative and void, first, because the right to file such certificate of extension is given only to street surface railroads, and not to a steam road (Railroad Law, §§ 90, 91); second, that when the route or main line of a railroad is less than two blocks in length, the construction of additional tracks paralleling the main road, at the lateral distance of one, two, three, four or five blocks from such main road, each nearly as extensive as the main road itself, neither of which can be said to be an appendage of the others nor connected with each other, nor with the main road, cannot be “such additions, betterments and facilities as maybe necessary or convenient for the better management, maintenance or operation ” of the original railroad (Railroad Law, supra, § 7, as amd. by Laws of 1905, chap. 727); third, that as the
We believe none of these contentions to be well made. Whether relator’s original certificate of incorporation has been properly amended, whether these additional tracks may be said to be betterments and facilities necessary or convenient for the management, maintenance and operation of its original railroad, and whether the consent given by the city of New York is complete or imperfect until the Public Service Commission has also acted, we need not now determine. The terms “land,” “real estate” and “real property,” as used in the Tax Law, include among other things “all surface, underground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways or public places; all railroad structures, substructures ando superstructures, tracks and the iron thereon; branches, switches, and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground * * *. A franchise, right, authority or permission specified in this subdivision shall for the purpose of taxation be known as a ‘ special franchise.’ ” (Tax Law [Con-sol. Laws, chap. 60; Laws of 1909, chap. 62], § 2, subd. 3.) It seems to be the fact that the relator, when this tax was imposed, was maintaining and operating over these tracks upon these various streets, at least by permission of municipal authorities having to do with the subject-matter, and that this is its only present authority for so doing. It asserts that it is not a trespasser. Then whence comes its privilege in these streets ? If it did not affirmatively assent to the contention of the city authorities that the land within the lines of some of the streets had been dedicated to public use, and
We think that the order made in this case was right and that it should be affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.