For the prosecutor, Anthony J. Armore.
John A. Hartpence, amicus curice.
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a railroad tax case under R.S. 54:20-1 (property not used for railroad or canal purposes taxed locally). The basic question for decision is the validity vel non of the resolution unanimously adopted by the Board of Commissioners of the Town of West New York, hereafter referred to as Town, on December 2d, 1942. By the terms of this resolution, briefly stated, the Town agreed, accepted and retained the sum of $75,000 in cash offered by the trustee of the New York, Ontario and Western Railway Company, hereafter referred to as Company, in full satisfaction of the past due taxes of $103,261.52 and interest of approximately $18,000 on the taxable property of the Company, located in the Town, for the years 1937 to 1942, inclusive. R.S. 54:4-99. Additionally, the Town, by this resolution, abated the past due taxes and interest in excess of the $75,000 (R.S. 54:4-100), and directed its tax collector, upon receipt of the $75,000, to cancel the unpaid taxes and interest and mark his records accordingly.
The validity of the resolution, challenged by a citizen and taxpayer of the Town, is not here defended either by argument or brief for the Town. It is defended for the Company by its counsel, as "amicus curiae."
The Company is a corporation of New York. Since May 20th, 1934, it has been operating, as a going concern, by Frederick E. Lyford, as trustee, who was appointed by the District Court of the United States for the Southern District of New York wherein proceedings are pending for its reorganization in accordance with section 77 of chapter VIII of the Acts of Congress relating to bankruptcy. For the effect of such a proceeding, see Lowden v. Northwestern National Bank and Trust Co., 298 U.S. 160, 163; 80 L. Ed. 1114, 1116.
The Company owns a coal terminal located in the Town at the foot of Sixty-seventh Street, extended. It covers about 12 acres of which 9.6 acres embraces the land in question and which is designated by the taxing authority of the Town as Block 179, Plat G, Lots A, C and D. Six of the 9.6 acres are water front land on the Hudson River. The land has full riparian rights. The improvements consist of eight buildings all of which are used for fuel delivery, of which two are high coal trestles. These trestles have a height of 31 and 32 feet over the dock of the pier; they are about 600 feet long and cover the entire two piers and extend some 400 feet over the land under water and beyond the bulkhead into the river.
The tax history of the assessments, after appeals, on said lands and improvements is as follows:
Year Land Improvements Total
1936 $340,000 $138,000 ...