People ex rel. Peter Cooper's Glue Factory v. State Board

Majority

p. 174

The People of the State of New York ex rel. Peter Cooper’s Glue Factory, Respondent, v. The State Board of Tax Commissioners, Appellant.

Second Department,

February 24, 1911.

Headnote

Tax — special franchise — permit to tap water main.

Where two corporations in 1881 obtained from the water purveyor of the city of Brooklyn a permit to tap the city water main upon certain conditions, and thereafter and with the consent of the abutting property owners laid a pipe from the city main to their factories for their private use only, such permit is not taxable as a special franchise.

The water purveyor did not assume to grant a privilege to lay or maintain pipes in the street, but only the privilege of connecting such pipe when laid with the existing city main at its termination, nor did he have authority to grant any further right.

A franchise to lay and maintain water pipes could at that time have been granted only by the legislative body in the city of Brooklyn.

Appeal by the defendant, The State Board of Tax Commissioners, from a final 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 July, 1910, and also from a judgment entered in said clerk’s office on the same day upon such final order, in a certiorari proceeding instituted to review the action of the appellant in assessing a special franchise upon a line of pipe laid by respondent in certain avenues in the city of Brooklyn.

William Austin Moore [Thomas Carmody, Attorney-General, with him on the brief], for the appellant.

H. B. Closson, for the respondent.

The facts are not disputed. The record shows that some time prior to May 27, 1881, the relator applied to the municipal authorities of the then city of Brooklyn to lay the necessary pipes to connect its "water supply with the factory of the relator, and furnish it with city water for use therein, which application was denied. Thereupon the relator and the Lawrence Rope Works filed an application with the board of city works for permission to lay at their own expense a six-inch pipe from the end of the city main to their premises for the purpose of procuring water for manufacturing purposes and fire protection, and agreed to pay, if such permission was given them, such annual water taxes as such board might, from time to time, impose upon the property. The water purveyor thereupon issued a permit granting the petitioners the privilege of tapping the city water main on Orient avenue, on the terms of their application, upon the condition that the acceptance of such permit should constitute a consent to the laying of water mains in the streets through which the petitioners’ pipe passed, whenever the board of city works should so order, upon the laying of mains the premises of the petitioners should be connected therewith, and that the supplying of water by the city from its main on Orient avenue should be subject to the laws, rules and regulations of the board in the same manner as if the premises to be supplied with water were in the pipe district. Thereafter, at their own expense and with the consent of the owners of property abutting on the avenues between the end of the city main on Orient avenue and their factories, the relator and said Lawrence Rope Works laid a pipe through which water has since been supplied by the city at the regular rates determined by properly installed meters. The learned trial court finds that, with the exception of the permit referred to, the relator never had any grant, privilege or franchise from any governmental or political body or officer, to lay, construct or maintain water pipes in or through said avenues, the fee of which is in the owners of the property abutting thereon, subject to use for street purposes and easements. In 1906 the appellant levied a special franchise assessment upon the line of pipe so laid by the relator and the Lawrence Rope Works of $5,000, and this proceeding was brought to review that assessment.

p. 176

The water purveyor did not assume to grant a privilege to lay or maintain pipes in the avenues, but only the privilege of connecting such pipe when laid with the existing city main at its termination in Orient avenue, and he had no authority to grant any further right or privilege. Such a franchise to be available could only, have been granted by the legislative body of the city of Brooklyn. (Ghee v. Northern Union Gas Co., 158 N. Y. 510 ; followed as to electrical conductors in subways in West Side Electric Co. v. Consolidated Tel. Co., 110 App. Div. 171 .) Mo right to lay the pipe in question having been granted by the Legislature or the common council, the pipe having been laid for private use only, with the permission of the owners of the property abutting thereon, the learned Special Term was right in the conclusion that the case presented was controlled by the rule declared in People ex rel. Retsof Mining Co. v. Priest ( 75 App. Div. 131 ; affd., 175 N. Y. 511 ), in Which case the provisions of the charter of" the city of Mew York relating to the exercise of its legislative powers are identical with the provisions of the charter of the city of Brooklyn in force in 1881. (Laws of 1873, chap. 863, tit. 2, §§ 1-13; Id. tit. 14, §§ 1, 3.)

The judgment and order must be affirmed, with costs.

"Jerks, P. J., Burr, Thomas and Carr, JJ., concurred.

Final order and judgment affirmed, with costs.

Cases cited

Ghee v. Northern Union Gas Co. 158 N. Y. 510 N.Y. 1899-04-18 p. 176
West Side Electric Co. v. Consolidated Telegraph & Electrical Subway Co. 110 App. Div. 171 N.Y. App. Div. 1905-12-22 p. 176
People ex rel. Retsof Mining Co. v. Priest 75 App. Div. 131 N.Y. App. Div. 1902-07-08 p. 176