The People of the State of New York ex rel. Nassau Electric Railroad Company, Appellant, v. Edward M. Grout, as Comptroller of the City of New York, and Edward A. Slattery, as Collector of Assessments and Arrears of the City of New York, Respondents

The People of the State of New York ex rel. Nassau Electric Railroad Company, Appellant, v. Edward M. Grout, as Comptroller of the City of New York, and Edward A. Slattery, as Collector of Assessments and Arrears of the City of New York, Respondents. Second Department, April 26, 1907. Tax — special franchise — when sums paid to municipality under agreement should be deducted from tax. The schemé of the statute for the taxation of special franchises is that they are to be assessed at their value without any diminution for any local charges thereon, and that such charges are to be deducted from the tax when levied. Under section 46 of- the Tax- Law not only sums paid as local taxes should be deducted from the assessment of a franchise tax, but. also sums paid to-the municipality “ under any agreement therefor,” based on the percentage of gross earnings or any other income or any license fee, etc. Hence, a surface railroad which, under an agreement, pays a toll to' the city of New York for crossing the Brooklyn bridge is entitled to have the sum deducted from its franchise tax when levied. Appeal ¡by the relator, the ¡Nassau Electric Railroad Company, from somuch of. an order of the Supreme Court, made at the Kings County Special Term and entered in 'the office of the clerk of the county of Kings on the 13th day of October, 19.06, granting a peremptory writ of mandamus, as denies the relator’s motion that the defendants be required to credit upon the special franchise tax of the relator for the year 1900 a certain sum paid by it to the commissioner of 'bridges for bridge tolls. Eckoárd W. Hatch [Charles - A. Collin, John L. Wells and George I). Yeomans with him on the brief], for the relator. George 8. Coleman [ William B. Ellison with him on the brief], • for the respondents. [MAJORITY — Gaynor, J.:] Gaynor, J.: The scheme of the statute for the taxation of special franchises (incorporated in the. Tax Law) is that they are assessed at their value without any diminution for any local public charges thereon, and that such charges are tó be deducted from the tax when levied. Section 46 requires that if there lias been paid to the city, town or ■ village for the tax year, under any agreement therefor, ox 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 pos7 sessed by such person, copartnership, association or corporation, which payment, was in the nature pf a tax '”, all amounts so paid shall be deducted from the tax. In this there are two inconsistent phrases applied to. the payments mentioned, the one “ under any agreement therefor”, and the other “in the nature of a tax”, (if the latter refers back to the former), for that which is paid under an agreement is not of-the nature of a tax. A tax is an exaction of' sovereignty, and not something derived from an agreement. This ■inconsistency and lack of scientific precision affects the interpreta.tion of the statute. It cannot, be said that only sums paid-as taxes may be deducted, for the^ statute classifies sums paid under agreement as taxes —which they may. be in a loose sense — and directs them to be deducted. The relator runs its cars across the Brooklyn bridge under an agreement with the city'requiring it to pay .a toll of 5.cents the round trip for each car. This payment is within the meaning of . the statute, provided the relator’s contract right to such use of the bridge is a special franchise. Inasmuch as the State has treated it . as such and assessed it, it is not open to the city compIroU'er to refuse ■ to make- the deduction on the ground that it is' not. If the tax is to be imposed and collected the deduction must be allowed. The order should be modified accordingly. Hieschbeeg, ■ P. J.,. Woodward,. Jenrs and. Hooker, JJ., concurred. ■ . Order modified in accordance with the opinion of' Gaynor, J.,. and as modified affirmed, without costs: