board of tax commissioners and no writ of certiorari to review such assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding." (Added by Chapter 875 of the Laws of 1911.)

Tax Law, Art. II, Sec. 47.-Tax commissioners to appear by counsel; employment of experts.—In any proceeding for the review of an assessment of a special franchise made by the state board of tax commissioners, said state board of tax commissioners is authorized to appear by counsel to be designated by the attorney-general. The attorney-general or such counsel may employ experts and the compensation of such counsel and experts and their necessary and proper expenses and disbursements, incurred or made in such proceeding, and upon any appeals therein, shall, when audited and allowed as are other charges against such tax district, be a charge upon the tax district upon whose rolls appears the assessment sought to be reviewed. Where, in one proceeding, there is reviewed the assessment of a special franchise in more than one tax district, separate accounts shall be rendered for said costs, expenses and disbursements to the proper officer of each of said tax districts and audited and allowed by him as aforesaid. For the purposes of this section, the City of New York shall be deemed one tax district. If provision shall not have been made for the payment of such expense in any year, then the officers who are empowered by law to make such provision in any county, city, town or other political subdivision of the state, are hereby authorized and directed to raise money to such an amount as may be necessary, in any manner provided by law for meeting expenses in anticipation of the collection of taxes and to pay such expense therefrom. The amount so raised shall be included in the amount to be raised by tax in the ensuing year.

Source: Tax Law of 1896, sec. 45a, added by L. 1906, ch. 155; amended L. 1911, ch. 471, amended L. 1913, ch. 134.

Tax Law, Art. II, Sec. 48.-Deduction from special franchise tax for local purposes.- 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, co-partnership, 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, co-partnership, association or corporation, which payment was in the nature of 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, co-partnership, association or corporation is entitled to credit as provided in this section, shall, not less than five nor more than twenty days before a tax on a special franchise is payable, make and deliver to the collector or receiver of taxes or other officer authorized to receive taxes for such city, town or village, his certificate showing the several amounts which have been paid during the year ending on the day of the date of the certificate. On the receipt of such certificate the collector, receiver or other officer shall immediately credit on the tax-roll to the person, co-partnership, association or corporation affected, the amount stated in such certificate, on any tax levied against such person, co-partnership, association or corporation on an assessment of a special franchise for city, town or village purposes only, but no credit shall be given on account of such payment or certificate in any other year, nor for a greater sum than the amount of the special franchise tax for city, town or village purposes, for the current year; and he shall collect and receive the balance, if any of such tax, as required by law.

Source: Tax Law of 1896, sec. 46, as added by L. 1899, ch. 712.

Payment in the nature of a tax.-A toll paid by a street railway company upon its cars crossing the Brooklyn Bridge is a payment in the nature of a tax and should be deducted from the amount of the special franchise tax assessed against the relator. People ex rel. Nassau Railway Co. v. Grout, 119 App. Div. 130; aff'd without opinion, 189 N. Y. 510. An annual percentage of the gross earnings paid to a city by a railroad corporation under the contract through which it obtained its franchise is a payment in the nature of a tax and should be

deducted from the amount of the special franchise tax against the relator. Heerwagen v. Crosstown Street Ry. Co., 179 N. Y. 99, mod. 90 App. Div. 275. Where a railroad received a special franchise to construct and operate a railroad across certain streets, one of the conditions being an annual payment to the city granting the franchise, such payment is in the nature of a tax and the relator is entitled to have the whole of it deducted from the whole amount of the special franchise tax assessment and this where only a part of the special franchise is in actual use, there being no authority to apportion the annual payment among the franchises in use and not in use, notwithstanding that the state board had assessed but thirteen crossings out of over one hundred. People ex rel. N. Y. Westchester & Boston R. R. Co. v. Hyde, 143 App. Div. 321. Payments in the nature of a tax under Section 46 of the Special Franchise Tax Act are confined to money payments only. Matter of Consolidated Telegraph & Electrical Subway Co., 119 App. Div. 835; aff'd without opinion, 189 N. Y. 549.

Tax Law, Art. II, Sec. 49.-Special franchise tax not to affect other tax. The imposition or payment of a special franchise tax as provided in this chapter shall not relieve any association, co-partnership or corporation from the payment of any organization tax or franchise tax or any other tax otherwise imposed by article nine of this chapter, or by any other provision of law; but tangible property subject to a special franchise tax situated in, upon, under or above any street, highway, public place or public waters, as described in subdivision three of section two, shall not be taxable except upon the assessment made as herein provided by the state board of tax commissioners.

Source: Tax Law of 1896, sec. 47, as added by L. 1899, ch. 712.

Local assessors violate this section in including special franchises in their assessments. Such violation cannot be urged in proceedings against the state board; the remedy is to be pursued against the local assessors. People ex rel. N. F. H. P. Co. v. Tax Com'rs, 65 Misc. 213.

NOTE: The following cases comprise decisions which involve determinations with reference to special franchises but do not properly fall under any of the sections of the law relating to special franchises:

Sufficiency of advertisement to sell special franchise for nonpayment of tax.-A notice of a proposed sale of a special franchise for non-payment of taxes is insufficient unless it correctly states the amount of the taxes required to be paid; credits allowed under section 48 must be deducted from the tax assessed. Guaranty Trust Co. v. Moynahan, 65 Misc. 623.

Debt limit-special franchises to be considered in fixing.— Special franchises appearing upon the assessment rolls of a municipality or real property and the value thereof, is to be considered as a part of the assessable real estate of the municipality in ascertaining the amount of property upon which the debt limit is to be computed. Kronsbein v. The City of Rochester, 76 App. Div. 494.

Evidence before local assessors of special franchise assessment to secure reduction of local tax assessment cannot be disregarded. Local assessors cannot capriciously disregard evidence presented before them to secure a reduction. People ex rel. Glen Telephone Co. v. Hall, 130 App. Div. 360; People ex rel. Glen Telephone Co. v. Failing, 130 App. Div. 888.

A special franchise is not assessable for a local improvement. -The property of the class embraced in that covered by the special franchise tax law is not subject to assessment for a local improvement. Matter of Anthony Avenue, 46 Misc. 525; followed in Matter of West Farms Road, 47 Misc. 216.

CHAPTER II.

ASSESSING THE VALUE OF SPECIAL FRANCHISES.

The Tax Law does not contain any rule for ascertaining the value of special franchises; it merely provides (Art. I, Sec. 2, Subd. 3) that “a special franchise shall be deemed to include the value of the tangible property of a person, co-partnership, association or corporation situated in, upon, under or above any street, highway, public place, or public waters in connection with the special franchise." There is no hard and fast rule by which the value of a special franchise must be determined. The assessors may ascertain the real value by availing themselves of all tests within their reach and all information which, in their judgment, bears upon the value. People ex rel. N. Y. C. & H. R. R. Co. v. Priest, 150 App. Div. 19.

The Court of Appeals has pointed out (People ex rel. Jamaica W. S. Co. v. Tax Comm'rs, 196 N. Y. 39) that it is beyond the province of the courts to lay down an exclusive rule for measuring the special franchise valuations; that if there were only one method, it would be the duty of the assessing authorities to adopt it, but that it is conceded that there are many reasonable methods and that the legislature has left the assessors free to use them; that the duty of Appellate Courts is to inquire whether the rule adopted in any case is adaptable to the facts of the case and has been correctly and consistently applied to those facts.

Management. In trying to determine what rule or method should be applied in a particular case, consideration must be given to the nature of the management operating the special franchise. Judge Earl in his opinion as referee, in the Special Franchise Tax cases observed: