Mayor v. Assessors of the City of Brooklyn

• Decision Date: 04 December 1888
• Citation: 111 N.Y. 505,19 N.E. 90
• Parties: PEOPLE ex rel. MAYOR, ETC., OF NEW YORK v. ASSESSORS OF THE CITY OF BROOKLYN et al.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 505

19 N.E. 90

PEOPLE ex rel. MAYOR, ETC., OF NEW YORK

v.ASSESSORS OF THE CITY OF BROOKLYN et al.¹

Court of Appeals of New York.

December 4, 1888.

Appeal from supreme court, general term, Second department.

Certiorari by the mayor, aldermen, and commonalty of the city of New York, to review an assessment of the city's property in Brooklyn, used as a landing for the ferry, made by the board of assessors of Brooklyn. The board of supervisors of Kings county was also a party defendant to the proceedings. The special term held the assessment invalid, and the defendants appealed to the general term, where the order was affirmed, and they again appeal.

Almet F. Jenks, for appellants.

Frederic A. Ward, for respondent.

ANDREWS, J.

We deem it unnecessary to examine at length the questions presented by this record, in view of the elaborate and satisfactory opinions pronounced at the specal and general terms, and shall content ourselves with a brief statement of what seem to us controlling considerations, which justify and require an affirmance of the orders below. It is to be taken as a conceded fact that the title to the landing place at the foot of Fulton street, Brooklyn, which is the subject of the assessment, is vested in the mayor, aldermen, and commonalty of the city of New York. The tax proceedings are based on this assumption. In what manner or at what precise time the city of New York acquired title does not appear. The ferry (now known as ‘Fulton Ferry’) running from this landing place to the city of New York is recognized in the Dongan charter as in existence when that charter was granted. In the protest of the mayor, aldermen, and commonalty of the city of New York, presented to Lord Cornbury in 1707, against granting the petition of one Seberingh for a ferry franchise between Nassau island and the city, it is alleged that the city of New York had possessed and enjoyed the franchise of operating a ferry between Nassau island and the city of New York for 70 years prior to that time, and the protest refers to the landing place on Nassau island used in connection therewith, locating it at the point where the landing which is the subject of the tax in question now is. The commencement of this period of 70 years antedates the Dongan charter nearly 50 years.

The words of grant of the ferry privilege to the city of New York in the Dongan charter of 1686, and in the Cornbury charter of 1708, and also in the Montgomerie charter of 1730, operated by way of confirmation of existing rights, and were not the foundation of the city's title to the franchise or the landing place. The city of New York, therefore, under an admitted title, the origin of which is not disclosed, has for a period of 250 years occupied by itself, its agents or lessees, the present landing place in Brooklyn, and used it for the convenience of the public, and as an incident to the ferry franchise.

We think the landing place was not taxable, upon the principle that property of a municipality acquired and held for governmental and public uses, and used for public purposes, is not a taxable subject, within the purview of the tax laws, unless specially included. It would probably be competent for the legislature to make the landing place taxable in Brooklyn, but, not having done so in terms or by necessary implication, the power to tax the landing cannot be spelled out from general words subjecting to taxation all real and personal property within the state. This principle of construction is well settled. It proceeds upon obvious public considerations. There would be manifest incongruity in subjecting to...