Opinion
July 2, 1917.
Alexander S. Lyman [ George H. Walker of counsel], for the appellant.
Merton E. Lewis, Attorney-General, and Frank A. Bennett, Corporation Counsel of Mount Vernon, for the respondents.
The relator's railroad formerly crossed Mount Vernon avenue and Oak street, in the city of Mount Vernon, at grade. Mount Vernon avenue was laid out and opened subsequent to the purchase of the relator's right of way, and was, of course, not subject to the special franchise assessment. ( People ex rel. N.Y.C. H.R.R.R. Co. v. Woodbury, 203 N.Y. 167.) In the year 1905 the relator and the city of Mount Vernon jointly petitioned the Board of Railroad Commissioners for an order eliminating the above grade crossings, in connection with others, and for a relocation of the line of the relator's railroad, as shown upon the plans mutually agreed upon, and which contemplated an increase in the railroad facilities of the relator. Such proceedings were had that the work was directed to be done under the provisions of law applicable thereto, and such work was actually undertaken and was well along at the time the assessments here under consideration were made. This work involved the construction of bridges carrying the relator's lines of railroad over these highways. These lines were not only relocated, but the number of tracks was increased from two to four, and the relator was enabled to materially increase its facilities by reason of this relocation of its tracks. The two assessments herein involved were made before the actual completion of the relocated lines, and before the relator had abandoned the original lines; but it is not disputed that at the time of making these assessments no assessment was made against the Oak street grade crossing, the Mount Vernon avenue crossing not being subject to taxation. The learned referee before whom the questions were tried came to the conclusion that the assessments were properly made against the relator's special franchises, and the relator appeals to this court.
We are of the opinion that the contention of the relator, that it owned no special franchises at the crossings of the new line of railroad, and that it was not the owner of the bridge structures, is without substantial merit. It owned the franchises necessary for the construction and operation of its railroad, and for such increased facilities as should be authorized by law, and among these were the franchises to construct and operate bridges carrying the four lines of track over these highways, and the mere fact that the work was not completed did not deprive the relator of its franchises. This fact may have had some bearing upon the value of the franchises, but none whatever upon their existence. The power and authority given to the Board of Railroad Commissioners to consent to the change of location and the increase of the facilities of the corporation constituted in effect an amendment of the chartered powers of the relator, and the corporation having joined in the petition for the elimination of the grade crossings, and having accepted benefits under the order of the Board of Railroad Commissioners, it may not be heard to say that it was not the owner of the franchises thus bestowed. This whole subject appears to have been settled by the court in People ex rel. Hudson Manhattan R.R. Co. v. Tax Comrs. ( 203 N.Y. 119), and it does not seem important to pursue the discussion.
The orders appealed from should be affirmed, with costs.
Orders unanimously affirmed, with ten dollars costs and disbursements in one case.