Herkimer County Light & Power Co. v. Johnson

Per Curiam : Under the charter of the city of Little Falls (Chap. 56£Í of the Laws of 1895) two assessment rolls are made in each year, one in February for the city taxes (§§ 157 and 158 of the charter, as amended by chapter 13 of the Laws of 1896), and one in August for State and county taxes. (§ 151, charter.) It is not stated in the submission whether the assessment complained of was for city taxes, or for State and county taxes, but from the date of the assessment it is assumed to have been for State and county taxes. It is assumed by counsel in their briefs that the question submitted is controlled by the Tax Law (Chap. 908, Laws of 1896), and [262] that the charter of the city of Little Falls does not affect the question ; and upon that assumption this case will be considered. It is conceded by the litigants in their submission that the property described in items 1, 2, o and 7 of the submitted case was legally assessed to the plaintiff as real estate, and at a fair valuation. It is also conceded by the litigants in their submission that the properties described in items 3, 4 and 6 of the submitted case are “ trade fixtures,” and can be removed from the buildings wherein used without injury to the buildings or to the real estate whereon they are used. By the 3d subdivision of section 2 of the Tax Law the terms “land,” “real estate” and “real property” are defined as follows•: “ 3. The terms ‘ land,’ ‘ real estate ’ and ‘ real property,’ as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, sub-structures, superstructures, erected upon, under or above, or affixed to the same; * * * all supports and inclosures for electrical conductors .and other appurtenances upon, above and under ground ; * * * all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or conveyance therein or that is protected thereby. * * *” By the 4th subdivision of that section the terms “personal estate” and “personal property” are defined as follows: “4. The terms ‘personal estate’and‘personal property ’ as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within this State, however secured, or wherever such securities shall be held; debts due by inhabitants of this State to persons not residing within the United States for the purchase of any real estate; public stocks, stocks in moneyed corporations, and such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate.” It will be observed that there is no language in the 4th subdivision of section 2 above quoted which describes the property mentioned in items 3, 4 and 6, except the word “ chattels,” and the exact ques [263] tian presesented is, whether the properties described in those items are “ chattels ” or “ real estate ” within the Tax Law, for if they are “ chattels,” they are not assessable in the city of Little Falls, but are-assessable in the village and town of Herkimer, under section 11 of article 1 of the Tax Law, which provides : “ § 11. The real estate-of all incorporated companies liable to taxation shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals. All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the tax district where the principal office or place for transacting the financial concerns of the company shall be, or if such company have no principal office or place for transacting its financial concerns, then in the tax district where the operations of such company shall be carried on.” “ The gas house above mentioned,” referred to in the 3d item, stands on land leased by the owner from year to year, as is stated in the 2d item of the submission, wherein it appears that the property described in the 3d item constitutes the gas generating apparatus, belonging to the plaintiff and is connected, as appears in the 5 th item in the submission, with “ about eight miles of gas pipes and mains ” laid underground and through the streets of the city of Little Falls for the distribution of gas to the plaintiff’s customers, which mains were assessed in 1898, for the purposes of taxation, as. realty and valued at $10,000. By the 7th item of the submission it. appears that when the assessment was made, the plaintiff owned 500-poles and 15 miles of line wire for the distribution of electricity to its customers in the city, which lines are connected with the machinery described in the 6th item. It appears by the submission that the property assessed in the 3d, 4th and 6th items is on land leased by the owners to the plaintiff. The term “ trade fixtures,” used in the submission, does not tend to advance the argument of either litigant, nor does it aid the court to decide the question submitted, for the reason that “ trade fixtures ” is a term usually used to describe property which a tenant has placed on rented realty to advance the business for which the realty was leased and may, as against the lessor and those claiming under him, be removed at the end of the tenant’s term. This concession would be useful in determining the rights between the plaintiff as lessee and its landlord. [264] Neither would it aid the court to consider the cases holding what are or are not fixtures as between vendor and vendee, mortgagor and mortgagee, heir or devisee and personal representative, mortgagees and execution creditors, or between the owner of the fee and his judgment creditors, because the Tax Law has set up a standard of its own which must govern the case. Before the passage of chapter 293 of the Laws of 1881 (amending § 2, tit. 1, chap. 13, pt. 1, R. S.), the definition of the term “ real estate ” contained in the Revised Statutes was deemed applicable to the statutes relating to taxation, but by that act property theretofore assessable as personalty was declared to be assessable as realty. Under that and subsequent acts relating to taxation the definition of the terms “ real estate ” and “ personal estate,” as used in the Tax Law, must be defined by those laws and not by the general statutes of the State. We are of the opinion that the language in the 3d subdivision of section 2 of the Tax Law above quoted, that “ all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting * * * electricity or any property, substance or product capable of transportation or conveyance therein or that is protected thereby,” must be deemed applicable to machinery used in connection with the mains or wires for generating and sending forth electricity on the lines or gas through the mains. The property described in the contested items 3, 4 and 6 is designated for use in connection with these lines and mains, which are clearly designated as real estate by the Tax Law, and the property described in those items is assessable as realty in the tax district where it is situated. A judgment should be directed in favor of the defendants holding that the property described in the 3d, 4th and 6tli items of the submission was rightfully assessed in 1898 to the plaintiff by the assessors of the city of Little Falls. If it should subsequently appear that the town or village of Herkimer has any interest in the question submitted, such interest must be regarded as open and undetermined, and the judgment entered must contain a provision to that effect. (Gray v. Daniels, 18 App. Div. 466.) The submission does not provide for costs, and in such a case the awarding of costs is discretionary with the court. (Code Civ. Proc. [265] § 1281; Gray v. Daniels, 18 App. Div. 465.) Under the circumstances we think costs should not be awarded to either party. All concurred, except Follett, J., dissenting; Ward, J., not voting.