This is -an appeal from a final order and judgment confirming the assessment by the State Board of Tax Commissioners of the special franchises of the Hudson and Manhattan Railroad Company for the year 1909.
The relator’s special franchise was valued at the gross sum of $8,000,000, and the return shows that this included a valuation of both the intangible right or privilege to occupy and use the streets, highways and public places for the business purposes for which the special franchise was granted, and the value of the tangible property erected or located therein and used in connection therewith considered together, but the return also shows that the Tax Commissioners made no separate valuation of the tangible and intangible property. It appears, however, from the evidence adduced by the respondents that-the value of the tangible property was taken at $7,642,322, which was the assumed cost of production. This leaves as the assumed value of the intangible property $357,678, but there is nothing whatever in the whole case from which it can be determined upon what' ground or basis this valuation was arrived at, since the respondents have failed to comply with the plain requirement of the statute that they shall include in their return a statement of the grounds of their valuation. (See Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 292.) The relator might have compelled a further return complying with the statutes, but since it has not done so it becomes our duty to inquire whether the valuation can be sustained upon any legal basis. The situation and condition of relator’s property in January, 1909, as of which time the valuation was made, were peculiar and unusual, and add much to the difficulty of arriving at a just and equitable basis for valuing the special franchises. The relator was formed on December 1, 1906, by the consolidation of a number of prior existing companies, and succeeded to the special franchises previously granted by the board of rapid transit commissioners to its constituent companies. It was organized for the purpose of constructing and operating a railroad in tunnels under the streets of the city of Hew York and the waters of the Hudson river and in Hew Jersey, containing in all twenty-six and twenty-two one-hundredths miles of single tunnel. The uptown *45route, consisting of two tunnels, with one track in each, extended in 1909 from Twenty-third street and Sixth avenue in the city of New York, under Sixth avenue, Christopher street, Greenwich street, Morton street and the North river to Hoboken, with a branch extending southerly in New Jersey to Jersey City. The downtown route extends from Jersey City under the North river and Cortlandt and Fulton streets to a terminal situated upon private property between Cortlandt and Fulton streets west of Church street. The boundary line between the States of New York and New Jersey runs along the middle of the North river, and, consequently, no valuation of a special franchise can be made for purposes of taxation except with respect to so much of the relator’s tunnels and property as lies under the streets of New York and under that portion of the North river which is within the State of New York. The feature of the case which presents the most difficult and novel question is that only a part of the relator’s system had been completed and put into operation in January, 1909. At that time the uptown tunnels had been completed under the river and as far as Twenty-seventh street and Sixth avenue, and were in operation as far as Twenty-third street and Sixth avenue. The tunnels under Fulton and Cortlandt streets of the downtown line had been completed, and the downtown tunnels under the river had been partially but not wholly completed, so that it was impossible to operate that part of the system. It will be seen that the relator’s system consisted of two lines of tunnels under the river and through the streets of the city which were not interdependent and which could be, and in the nature of the case would be, operated independently, for it is not to be supposed that there would be any considerable number of persons who would travel up and downtown by way of Hoboken and Jersey City. Of these two independent lines one was in operation in January 1909, and the other was not. The evidence clearly shows that in basing the assessment upon the cost of production the respondents included the cost of the lower, uncompleted and unusable tunnel structure, as well as the upper structure which had been recently completed and put in service, and the question at once presents itself whether or not the tax commissioners were justified in assessing at its cost of production the uncompleted downtown tunnel. ■ The cost of production rule is an easy one to follow but it is by no means *46applicable to every case. What the tax commissioners are required to determine is the value of the special franchise including the tangible and the intangible elements which the statute provides shall be included in the franchise. It is manifest that, quite independent of cost, the value of the tangible property depends in great measure upon the right and ability to use it in furtherance of and in connection with the exercise of the intangible permission to operate the railroad. This was clearly pointed out by the Court of Appeals with reference to the tangible property in the public streets of a surface railroad company. Speaking of the rails, ties and the like, the court said: “ They are worth virtually nothing except for railroad purposes * * *. Separate them from the franchise by taking away the street privilege, and they are destroyed. Their only value as rails and ties, as distinguished from so much old wood and iron, is gone. Taking the broad and practical view of the subject, which the Legislature had the right to take in creating the new system, they have no assessable value worthy of notice, except through the actual and constant use made of them as incidental to the special franchises. The value of either resides in the union of both and can be practically ascertained only by treating them as a unit. "Unless assessed together, both cannot be adequately assessed.” (People ex rel. Met. St. R. Co. v. Tax Comrs., 174 N. Y. 441.) The foregoing observations are entirely applicable to the downtown portion, at least, of relator’s system. However costly the tunnels may have been so far as completed, they were practically valueless to relator until they could be used for the purposes for which they were designed. In such a case, as it seems to me, the application of the cost of production rule of assessment, must necessarily produce an erroneous and un just result. A very similar question arose with reference to the valuation of the underground conduits, built by the Consolidated Subway Company for carrying electrical conductors. In assessing the value of the capital stock of that company, it became necessary to fix the value of the conduits, and the tax commissioners, adopting the cost of production rule, valued the conduits at their full cost, amounting to something over $5,000,000. It appeared that, up to that time, the company had. been able to rent only about forty per cent of the number of conduits it had been compelled to build to provide for probable demands in the *47future, and that as to sixty per cent of the conduits no income whatever was earned. This court said: “ Ordinarily the cost of property would be a safe guide to follow in determining the value, but the exceptional character of this property, its uses, and the company’s inability to rent more than forty per cent of its subways, the poor returns upon the amount invested and the present insolvent condition of the company, are considerations which cannot .be eliminated in determining the value of these subways as real estate, -x- * * It would be disregarding all the elements which usually go to make up value to say that such property was worth what it cost. Considering, therefore, the peculiar character of such property, the cost of construction is not a fair test of its value.” (People ex rel. Subway Co. v. Barker, 7 App. Div. 27; affd., 151 N. Y. 639.) Except that the present relator is not insolvent, the foregoing expression of opinion seems to me to apply with great force to the valuation of an important part of relator’s system, and as to that part, at least, the cost of production rule seems to me to have been inapplicable. If I am right in the view that the special franchise attached to the unfinished downtown line has not yet acquired a taxable value, it follows that the assessment made by the respondents was erroneous, excessive and arrived at upon a wrong theory. The erroneous assessment of so large a proportion of the tangible property vitiates necessarily the entire assessment. The record does not contain sufficient data to enable us to determine either the theory upon which a new assessment should proceed, or the amount of such assessment. The matter should, therefore, be remitted to the Special Term to revalue and reassess the special franchise.
Ingraham, P.. J., concurred.
Order modified as stated in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.