#### THE HUDSON RIVER BRIDGE COMPANY, Appellant, v. JOHN A. PATTERSON and others, Respondents.

*Toll bridge*— taxation *of real estate of.*

The real estate of a toll bridge is subject to assessment and taxation in the town in which it is situated.

*Oswego Stwreh, Oonvpany*v. *BoUowa/y*(21 N. V., 152) followed, and *Utica Ootton Manvfact/ming Oom/pa/ny*v. *Supwrisors*(1 Barb. Oh., 117) overruled.

Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

The referee found that plaintiff was a corporation duly created and organized by and under an act of the legislature of this State, passed April 9, 1856 (chap. 146, Laws of 1856); that under the authority conferred by said act, plaintiff had acquired title to lands in the town of Greenbush, in the county of Rensselaer', and had erected a bridge over and across the Hudson river, the westerly por*526tion of which is in the city and county of Albany, the easterly portion, from the center of the channel of the river to about low-water mark, is in the town of North Greenbush, Rensselaer county, and the residue or portion east of low-water mark is in the town of Greenbush aforesaid; that a portion of the lands owned by plaintiff in said town of Greenbush is used and occupied for and by the bridge' and its approaches, but a portion of said lands is not so used. Plaintiff, when parts of lots were needed and required for the purpose of the bridge, purchased the whole of said lots, and whatever use was made of the parts of said lots not required for bridge purposes, if any, was separate and independent of the bridge; that up to the time of the assessment and taxation hereinafter set forth the said bridge had been -used exclusively for passage over and across it of railroad trains; that there was no carriage or foot-way for the accommodation of the general public, and the passage of the bridge by persons on foot was forbidden to all except the servants and employes of the railroad companies whose trains crossed the bridge, and the only compensation for the use of the bridge was paid by the said railroad companies; that plaintiff received compensation from the said railroad companies, but under what agreement or how the amount of the compensation was fixed and determined did not appear; that the compensation so collected and received by plaintiff was paid to it at the office of its treasurer in the city of Albany; that on December 5, 1872, the defendants herein were the legally elected and acting trustees, and members of the board of education of a joint school district, formed partly of lands situate in said town of Greenbush, and partly of lands situate in said town of North Greenbush, known as “ Union Free School District No. 6 of the town of North Greenbush, county of Rensselaer ; ” that as such trustees, and for the puipose of collecting a tax legally and properly voted, the said defendants made out an assessment list or tax roll, and annexed thereto their warrant in due form, directed to the collector of said school district, directing him to collect of the taxable inhabitants and corporations named, and of the owners of real estate described in said list, the several sums of tax carried out in the last column opposite each name and description; that there were described therein parts of the aforesaid lots belonging to the plaintiff; that defendant Dollar, under and by virtue of said *527warrant, on or about June 4, 1873, levied upon a steam tugboat belonging to said plaintiff for tbe purpose of collecting tbe sums so carried out as tax upon said roll opposite the description of plaintiff’s bridge and real estate as aforesaid, wbicb tax bad not been paid by plaintiff, or any item or portion thereof, and after having duly advertised tbe same, and on tbe 12th day of June, 1873, tbe said collector sold said tugboat at public auction for tbe purpose of collecting said tax.

*Matthew*Hale, for tbe appellant.

*Amasa J.*Parker, for tbe respondents.

*Per Curiam:*

"We think tbe real estate of a toll-bridge should be assessed in tbe town in wbicb it is situated. Such is tbe rule in regard to all incorporated companies (1 R. S., 389, § 6), and we do not think tbe concluding clause of that section was intended to create a different rule in regard to toll-bridges. ~We think that clause refers to tbe place of taxation of tbe personal property, and to that only. There is no apparent reason why a different mode of assessment should prevail in case of toll-bridges. Tbe views of tbe chancellor in *Utica Cotton Manufacturing Company*v. *Supervisors*(1 Barb. Ch., 447), and of Judge Denio in *Oswego Starch Company*v. *Dolloway*(21 N. Y., 452) on this subject are in direct conflict, and both are *obiter. We*prefer to follow Judge Denio. In chapter 259, Laws of 1848, section 14 (3 Edm. St., 571) tbe legislature has so declared tbe law as to all bridges built under that act. It seems to be some confirmation of our view, since it would be very extraordinary to have one rule of taxation for bridges built under that act and a different rule for all other bridges.

In all other respects we concur in tbe views of tbe learned referee as expressed in his opinion. This bridge is not a toll-bridge within tbe meaning and intent of tbe statute. Tbe lands in Greenbush, not used or necessary for tbe construction or maintenance of tbe bridge, were bable to assessment and taxation in tbe same manner and to tbe same extent that a farm, or store, or bouse and lot owned by tbe company would be assessed and taxed. Tbe migration of tbe *528treasurer, the removal of the toll-house or the principal business office from one side of a stream to the other, or from one town to another, would not and ought not to cany along the right of taxation of the houses, lots or vacant real estate.

This suit is brought to determine the question where the real estate of the plaintiff should be taxed. It is important that its right in that respect should be authoritatively declared, so that double taxation by conflicting powers claiming jurisdiction should not embarrass and do injustice. We have, therefore, preferred to put our decision upon the broad basis of absolute right to tax the real estate in the town or ward where situated. If we shall be sustained upon appeal to the Court of Appeals, that will be an end of ail doubt and uncertainty.

Por the reasons given the judgment should be affirmed, with costs.

Present — Bookes and Boardman, JJ.; Learned, P. J., taking no part.

Judgment affirmed, with costs.