#### The City of Ithaca, Plaintiff, *v.*Ithaca Street Railway Company, Defendant.

(No. 3.)

Third Department,

June 28, 1911.

Railroad — street railway — franchise — agreement to pay city fixed • sum in addition to tax — waiver of statute.

If public policy does not prevent, a party may waive the benefit of a statute and assume obligations in addition to or beyond the statutory-obligations which would otherwise control.

■Thus, a street railway company may waive the provisions of section 48 of the Tax Law providing that if a corporation assessed for a special fran ehise shall have paid to the city in which its property is located, within the next preceding year under any agreement, any sum on account of the special franchise, which payment was in the nature of a tax, its amount shall be deducted from the special franchise tax.

Where a street railway corporation, after the passage of section 48 of the Tax Law, agreed to pay a city for its franchise $500 a year for a term of years, “such payments *• * * to be in addition to all franchise or other taxes and assessments imposed by law,” it is not entitled to have the $500 deducted from the amount of its franchise tax.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

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      *Peter F. McAllister,*for the plaintiff.

*Myron Tompkins*and *A. W. Feinberg*for the defendant.

Kellogg, J.:

Prior to April 15, 1908, the defendant, under a franchise from the plaintiff, maintained and operated a single-track surface railway on State, Eddy and Tioga streets in the city of Ithaca. Upon that day it applied to' the plaintiff for permission to construct and maintain a double-track railway upon some of said streets, and a franchise was granted it by the plaintiff on or about May 13, 1908, and formally accepted by the defendant June 3, 1908. The 18th section of said agreement or franchise provided in substance that the' railway company should pay to the city on or before October first, in each year, the sum of $500 per year for fifty years, and thereafter the sum of $750 per year during the lifetime of the franchise, ‘c such payments to be chargeable against -the earnings and assets of the Company operating the franchise as taxes are chargeable and to be in addition to all franchise or other taxes and assessments imposed.by law.”’ .

At and prior to that time section 48 of the Tax Law was in force, which provided in effect that if a corporation assessed for a special franchise shall have paid' to the city, town or village 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, copartnership, association or corporation, which payment was in the nature of a 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 defendant contends that having paid the $500 the preceding year, it is entitled to have that amount deducted from *677the franchise tax for the succeeding year, and relies upon *Heerwagen*v. *Crosstown Street Railway Co.*(179 N. Y. 99) and other like cases. We may assume that aside from the agreement in the franchise that the payment therein provided is to be in addition to all franchise or other taxes or assessments imposed by law that such deduction should he made. Where public policy does not prevent a party may waive the benefit of a statute and may assume obligations in addition or beyond the statutory obligations which would otherwise control. The $500 by the express terms of the franchise is not to measure the value of the franchise and is not the measure of the sum which the defendant was to pay the city for the rights granted. It was to pay $500 in addition to all franchise and other taxes, and a construction of this statute which determines that the $500 is to be deducted from the franchise tax deprives the-city of the payment which the parties expressly agreed it should have! The terms contemplated by the franchise were that all franchise and other taxes must be paid and in addition, thereto the sum mentioned. The gross amount to be paid in each year could not be determined,, therefore, until all taxes were known, but the $500 was to be paid in any event as a fixed sum and in addition thereto the taxes and assessments. Any other construction is a violation of the intention of the parties and is an exemption of the defendant from an agreement which it has expressly made. The statute has reference to amounts paid under any agreement, that is, any amount paid for the use of the franchise, and the object of the statute is to prevent double taxation, but there is no double taxation when the parties have agreed that in addition to all taxes a further sum must be paid. The payment of all taxes and of the $500 is the payment which it was agreed the city should receive in gross for the use of its streets by the defendant.

The stipulation of submission .provides that if the controversy is determined in favor of the plaintiff it shall have judgment for $1,820, without costs.

Judgment is, therefore, awarded to it for that sum.

All concurred.

Judgment awarded to the plaintiff for $1,820, without costs.