Third Department, July, 1921. [Vol. 197 ized and required to purchase from said bridge company its property for the sum of $23,000; that thereafter the title to said bridge property should be in the towns of Amsterdam and Florida, and it was provided that the trustees of said villages at the expense of said towns should keep said property in repair, assessing the expense thereof against the property of said towns. This was done. In 1885 the city of Amsterdam was incorporated and as to this bridge succeeded to the rights and liabilities of the village and town of Amsterdam (Laws of 1885, chap. 131, § 103); in 1888 Port Jackson was annexed to the city of Amsterdam by chapter 131 of the Laws of 1888. By this last act the defendant acquired all of the bridge property and succeeded to all of the rights and liabilities of the village and town of Amsterdam and the village of Port Jackson and town of Florida. That act (amdg. City Charter, § 103) provided with reference to said bridge as follows: "The common council of the city of Amsterdam shall have charge and control of the bridge over the Mohawk river, and it shall be their duty to keep the same in repair, at the expense of the city of Amsterdam, to be levied and collected as other taxes are levied and collected for like purpose." This is the last enactment of the State Legislature we find directly referring to the bridge in question. Chapter 242 of the Laws of 1911 is entitled: "An act to amend, consolidate and revise the several acts relative to the city of Amsterdam." By section 1 the act shall be known as the Amsterdam City Charter. The 2d section of said act, entitled "corporate powers," subdivision 6, reads: "To have and exercise all the rights, privileges, functions and powers now prescribed and exercised by it under existing or subsequent laws and not inconsistent with the provisions of this act." Section 160 of said act, entitled repeal," refers to the acts consolidated, revised, etc., and provides: "but such repeal shall not revive any act or part thereof heretofore repealed, nor affect any act done, right vested or established Nothing herein contained shall be construed so as to destroy, impair or take away any property vested or any right or remedy acquired by or under any act hereby repealed." The Mohawk river passes through said city in an easterly and westerly direction; it is crossed by a bridge which is approached from the north and * * * App. Div. 848] Third Department, July, 1921. the south on a street designated and maintained by said city as Bridge street. This bridge is approached from the south by a high embankment for hundreds of feet back from the bridge. This was constructed by the original bridge company, incorporated under the Laws of 1813 (supra), as a part of that enterprise and bridge. The surface of this approach is twenty feet above the land level at the bridge and slopes back until it merges with the highway or street at a grade level with the natural surface of the ground in that locality. The plaintiff purchased the vacant lot east of said approach and south of the bridge, her lot being bounded on the west by Bridge street. She built a building upon a foundation constructed by her on her own land and independent of the wall of the approach, which approaching wall tapered from its extreme east line upward toward the level of the approach. Between her building and the east line of the approach, and as a part of said approach, the city built a foundation and laid a sidewalk. It appears from the evidence that the sidewalk and foundation aforesaid became out of repair or insufficient for the growth and advancement of the city, and in 1917 the common council of the appellant city built a new walk along and in front of plaintiff's property, but on the city property taken over as aforesaid, and taken over under the conditions above set forth, and assessed the cost against the plaintiff's property. This action was taken under the provisions of the law of 1911 (supra). To avoid a sale of her property the plaintiff paid the amount assessed against her, but paid it under protest, thus saving her rights for any future move that she might be advised was available to her. She sued the city and was successful; the city appealed. The city justifies its action by relying on the law of 1911 (supra). If there was no other law involved, its position would be impregnable; but we have seen that this same law saves any and all rights theretofore existing under any statute theretofore enacted and under which such rights had been created. The potency of this saving clause, section 160, in the statute of 1911 aforesaid, has been repeatedly recognized and confirmed by the city since said enactment. In 1913, 1914 and 1917 such instances occur, and this plaintiff is the only one and her case is the only exception to the general rule followed Third Department, July, 1921. [Vol. 197 since 1864. These acts have been uniform and the rule of practical construction applies. (Mayor, etc., v. Starin, 106 N. Y. 1; Power v. Village of Athens, 99 id. 592.) That the approaches are part of the bridge has been settled in this department. (Edwards v. Ford, 22 App. Div. 277.) There are many decisions in this State to the same effect. The judgment should be affirmed, with costs. Judgment unanimously affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. GORHAM MANUFACTURING COMPANY, Relator, v. STATE TAX COMMISSION, Respondent. Third Department, July 7, 1921. Taxation - mortgage tax determination by State Tax Commission of value of long term leases - Commission not bound by value placed thereon by mortgagor · - opinion evidence, cost of property and improvements thereon may be considered gagor amount to admission of value of lease. books of mort The State Tax Commission in proceeding under section 260 of the Tax Law to determine the value of long term leases for the purpose of fixing the mortgage tax thereon is not bound to accept the opinions of experts of the mortgagor as conclusive. Opinion evidence, the cost of the property and the improvements placed thereon by the mortgagor are all elements that may be considered by the Commission in determining the actual or market value of the leases. The Commission in adopting as the value of the leases the cost of the improvements, less depreciation, that being the same amount at which at the time of its determination such value was represented on the books of the relator, did not act erroneously in arriving at its conclusion as to the actual or market value of the leases. Furthermore, the books of the relator were a standing admission by it that the value of the leases was precisely that which the Commission fixed as their value. CERTIORARI issued out of the Supreme Court and attested on the 23d day of July, 1920, directed to the State Tax Commission, commanding them to certify and return to the office App. Div. 852] of the clerk of the county of Albany all and singular their proceedings had relating to the determination and apportionment of the mortgage tax payable by the relator. Olney & Comstock [Albert E. Maves and Robert C. Beatty of counsel], for the relator. Charles D. Newton, Attorney-General [James S. Y. Ivins of counsel], for the respondent. COCHRANE, J.: Under a mortgage executed by the relator covering property within and without the State and recorded in the office of the register of the county of New York on March 6, 1918, it became the duty of the State Tax Commission, as provided by section 260 of the Tax Law (added by Laws of 1916, chap. 335, as amd. by Laws of 1917, chap. 72; since amd. by Laws of 1918, chap. 204), to determine separately the values of the property situated respectively within and without the State. The relator submitted affidavits of experts stating their opinions as to such values. The Commission accepted those opinions as to the value of the property without the State but refused to accept them as to the value of the property within the State. It is contended by the relator that in such refusal the Commission was in error. The property within the State consists of leases giving to the relator the option to continue them for many years, in some instances at least for fifty or sixty years. The relator made extensive improvements on the leased property for the purpose of making it peculiarly valuable in relation to its business which improvements at the termination of the leases will revert to the fee owners. It also carried on its books as the value of such leases the cost of such improvements reduced from time to time by suitable allowances for depreciation. The Commission adopted as the value of the leases the cost of the improvements less depreciation being the same amount at which at the time of its determination such value was represented on the books of the relator. The true subject of the inquiry was the actual or market value of the leases. (People ex rel. Metropolitan Street R. Third Department, July, 1921. [Vol. 197 Co. v. Barker, 121 App. Div. 661; affd., on opinion below, 200 N. Y. 509; Matter of City of New York [Delancey Street], 120 App. Div. 700; People ex rel. Delaware & Hudson Co. v. Feitner, 61 id. 129; affd., 171 N. Y. 641.) In establishing such value the opinion evidence submitted by the relator was competent but inconclusive. The cost of property as a general rule is also competent but inconclusive evidence. The weight and value of the evidence was exclusively for the consideration of the Commission. It determined that the affidavits of the relator were unsatisfactory and unreliable. There can be no question that the improvements to the leased property made by the relator increased its value and was proper evidence for the consideration of the Commission on the theory that what one pays for property is some evidence of its value. The cost of the improvements was not paid to the owners but it correspondingly enhanced the value of the leases and was an indication of what the relator deemed the increased value to be. The Commission did not ignore or disregard the evidence of the relator but weighing it in connection with what was equivalent to the cost price of the property fixed the actual or market value with reference to all of the evidence. From the cost price it made deduction for depreciation. Furthermore, the books of the relator were a standing admission by it that the value of the leases was precisely that which the Commission fixed as their value. Certainly the Commission might have fixed the value at a less amount, but it was a plain question of fact and no principle was violated by the Commission in arriving at its conclusion as to the actual or market value of the leases. The determination should be confirmed, with fifty dollars costs and disbursements.. Determination unanimously confirmed, with fifty dollars costs and disbursements. |