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Bonnell agt. Griswold.

agt. Crosby, 49 N. Y., 183; Hoag agt. Lamont, 60 N. Y., 96). So in Stokes agt. Stickney (96 N. Y., 323, above cited), it is said that the statute of 1848, providing for this cause of action, gives it to the creditors of the corporation, and the debt itself being assignable, it follows that whoever becomes the owner thereof takes as the incident thereof the right to the penalty, and is by the terms of the statute, entitled to maintain the action (page 327). This, too, is the doctrine of the decision in Carley agt. Hodges (19 Hun, 187, above cited). Now, the administrator of the deceased plaintiff as such has become the owner of the claim against the corporation, which claim constitutes the foundation of the right of action, with the incident thereof, to wit, the right to the penalty; and, again, quoting from Stokes agt. Stickney, "is by the terms of the statute entitled to maintain the action." Indeed an administrator is deemed in law to be the assignee of the assets of the estate which he represents. Judge DENIO says, in Zabriskie agt. Smith (13 N. Y., on page 333), "an administrator represents the person of the deceased, and is in law his assignee."

In view of these decisions in the court of appeals, I think I must hold that this action may be revived and continued by and in the name of the administrator of the deceased plaintiff.

Motion granted.

People ex rel. Pres., &c., of D. & H. Canal Co. agt. Roosa and others.

SUPREME COURT.

THE PEOPLE ex rel. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY agt. ZACHARIAH ROOSA and others, assessors of the town of Marbletown.

Assessments

- How the value of railroad or canal property is to be determined. Although in determining the value of railroad or canal property, for the purposes of taxation, the cost of creating it may be considered, yet its earning capacity should be the more controlling consideration or test.

Ulster Special Term, June, 1885.

CERTIORARI to review assessments.

Peter Cantine, for relator.

J. Newton Fiero, for respondents.

WESTBROOK, J.--By separate writs of certiorari prosecuted under chapter 269 of the Laws of 1880 the relator seeks to review its assessments in the town of Marbletown, Ulster county, in the years 1882 and 1883. A referee was appointed to take the evidence and the proceedings are now submitted, after argument, upon the report of the referee.

of

The relator owns a canal extending from Eddyville, the head of navigation upon the Rondout creek, in the county Ulster and state of New York, to Honesdale in the state of Pennsylvania.

The total length of the canal is 108 miles, four miles of which are within the town of Marbletown. The total assess ment of the relator in such town is $180,000, all of which is for the canal, except about $10,000 which is for other property. The valuation of the canal in the town is about $42,500 per mile.

The total assessed value of personal property in the town is $10,450 for the year 1882 and $12,025 for the year 1883.

People ex rel. Pres., &c., of D. & H. Canal Co. agt. Roosa and others.

No evidence was given in regard to these valuations, and their correctness will, for the purposes of the present proceeding, be assumed, though it seems incredible that in an entire town of the wealth and size of Marbletown the amount of personal property liable to taxation is so inconsiderable.

It is conceded that all the real estate in the town with the 'exception of that of the relator is valued upon the rolls for the years 1882 and 1883 at forty-four and seven-tenths per cent of its actual value. This admission renders unnecessary any discussion as to the valuation of such other property and narrows it to one single point, the value of the canal per mile.

In view of the fact that the assessors of the town concede they have valued all the real estate of the town, with the exception of that owned by the relator, at less than half its actual value, it is not improper to say that they admit a clear violation of the statute, which declares: "All real and personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value as they would appraise the same in payment of a just debt due from a solvent debtor" (2 R. S. [7th ed.], 992, sec. 17). In view of the same concession it is difficult to conceive how the respondents could swear, as they did swear for two years, and as the statute required them to do (2 R. S. [7th ed.], 994, sec. 8), that in the valuation of the real estate in the town they had complied with this enactment. It is perhaps, however, due to the respondents to say that, doubtless, long practice in their town, which, believing to be right, they adopted, somewhat softens the moral view to be taken of their conduct, but the bald fact still remains that there has been a gross and clear departure from a very plain statute.

In ascertaining the value of property, similar to that owned by the relator, this court held in the The People ex rel. The Wallkill Valley Railroad Company agt. Keator and others (67 How., 277), recently affirmed at general term, but as yet unreported, and in The People ex rel. The Albany and Greenbush Bridge Company agt. Weaver and others (67 How., 477),

People ex rel. Pres, &c., of D. & H. Canal Co. agt. Roosa and others.

also affirmed at general term (34 Hun, 327), and likewise in the court of appeals, that its earning capacity was largely the

test.

The canal of the relator, as shown by its acts of incorporation, and as is well known in fact, was built to supply an avenue to bring its own anthracite coal from its mines in Pennsylvania to the Hudson river. The transportation of such coal to market is the principal use of the canal. The total amount of tolls received by the relator, for the use of its canal by other parties, was $60,007.52 in the year 1882, and $52,403.39 in the year 1883. The cost of operating and maintaining the canal was $175,617.42 in 1882, and $183,525.58 in 1883. As the results for the two years referred to are not phenomenal, but are a fair average of a number of years, it is safe to say that the cost year by year of maintaining and operating the canal is three times as great as its receipts. It is true that in making this statement no allowance is made for the coal belonging to the relator which passes over the canal, for that pays no toll, and therefore furnishes no revenue, though it must be more or less of a benefit to the relator. The total amount of the revenues of the canal is, however, an important factor to ascertain its value for the purposes of taxation; and in this connection the further fact must be considered that while the canal originally was the sole outlet for the relator's coal, the cost of transportation thereover, as compared with that by rail, has diverted more than two-thirds of the production of its mines from that avenue to others. created by railroad.

The assessors are not, however, to value the property according to its needs to the relator, but "at its full and true value as they would appraise the same in payment of a just debt from a solvent debtor." Applying this test, at what sum should the canal be valued? The buyer would be informed that the receipts of the canal were far less than its maintaining and operating expenses to be paid out. If he had no coal to transport to market he would probably conclude that it was not

People ex rel. Pres., &c., of D. & H. Canal Co agt. Roosa and others.

worth the taking if it was to be maintained and operated, and if he had the coal for the carrying of which he could utilize the property he would naturally insist that if he took such an old and obsolete way as a canal, it should be put to him at a price so cheap that it would better pay him to put his capital in it than in a railroad.

Under circumstances such as have been described it is difficult to value the property. The day of canals has clearly gone by. Not only is this shown by the evidence of the relator, but the history of those owned by the state demonstrates that they can no longer be a source of revenue to their owners. Feeling the force of this fact the witnesses called by the relator (principally its officers, with the exception of Mr. Slevens an eminent canal and railroad engineer from New Jersey), value the canal at a sum not exceeding $8,000 per mile, while some of them regard it as of no value except for the bed of a railroad to be constructed. Nor is this evidence substantially controverted by the respondents. One of their two witnesses on valuation, Mr. Sweet, makes its value computed upon its cost $50,000 per mile, but he declines to give an estimate of its value based upon its capacity to earn money. It is difficult, as has been before stated, to say what valuation should be put upon the property. If its value is estimated by its earning capacity, solely, to a buyer other than the present owner (to whom it is of some value to transport its own property), as the statute contemplates, it would be worth nothing. No person not the owner of coal lands in Pennsylvania would take it as a gift if the gift was coupled with a covenant by him to maintain and operate it as a canal; and the owner of coal lands, who had to find an outlet for the production. would only pay a price, which by its cheapness would make it an object for him to invest his money therein rather than in a railroad. The relator, however, owns this property, and has coal in Pennsylvania to be mined and to be transported. It must, for that purpose, have some value or it would be abandoned. It forms a part of the property of the town, and VOL. II 58

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