In re the New York City Interborough Railway Co.

The following is the opinion of the Special Term:

The relator moves for a peremptory -writ of mandamus commanding the collector of assessments and arrears to credit against the special franchise tax levied against the relator for the year 1908 a certain payment of $15,000. It appears that the board of aldermen by ordinance in the year 1903 granted to the relator the right to operate a street surface railway on certain streets in the boroughs of Manhattan and the Bronx. Thereafter and on or about July 27,1909, an agreement was entered into between the city and the relator whereby the sums to be paid annually to the city pursuant to said ordinance were materially reduced, one of the conditions of such reduction being the immediate payment by the relator of all sums then due for the right to use the said streets at the rate specified in the original franchise of 1903. The relator thereupon, in the month of July, 1909, paid to the city the sum of $36,458, representing the balance due for the use of said streets for the year ending September 30, 1906, and the amount due for the years ending September 30,' 1907, and September 30, 1908, respectively, together with interest thereon. The tax assessed upon the special franchise of the relator for the year 1909 amounted to the sum of $11,346.90 only, which tax for said year 1909 was entirely canceled pursuant to section 48 of the Tax Law. Of the payment made in the month of July, 1909, $13,000 represented the franchise payment for the year ending September 30, 1908, which was more than sufficient to cancel the special franchise tax for the year 1909. On September 20, 1909, the chamberlain of the city of New York delivered to the defendant, as collector of assessments and arrears, a certificate showing that in July, 1909, $15,000 had been paid by the relator as the franchise payment for the year ending September 30, 1907, and this sum the relator claims should offset the special franchise tax for the year 1908. Section 48 of the Tax Law^[2] provides: “ If, when the tax assessed on any special franchise is due and payable under the provisions of law applicable to the city, town or village in which the tangible property is located, it shall appear that the person, copartnership, association or corporation affected has paid to such city, town or village for its exclusive use within the next preceding year, under any agreement therefor, or 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 possessed by such person, copartnership, association or corporation, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city, town or village, except money paid or expended for paving or repairing of pavement of any street, highway or public place, shall be deducted from any tax based on the assessment made by the State Board of Tax Commissioners for city, town or village purposes, but not otherwise; and the remainder shall be the tax on such special franchise payable for city, town or village purposes. The chamberlain or treasurer of a city, the treasurer of a village, the supervisor of a town, or other officer to whom any sum is paid for which a person, copartnership, association or corporation is entitled to credit as pro