This appeal involves the assessment made against the relator for 1906. With one exception the facts are so similar to those involved in the appeal relating to the assessment for the preceding year and considered in our opinion on that appeal that there is no necessity for discussing them. The only respect in which the facts differ is in the supplying of electrical *Page 327 power by relator to other parties. During the year 1906 the balance of electrical power supplied by it to the Manhattan Railway Company, over the tie line running between power houses of the two companies amounted to a little over 100,000 K.W.H. During the same time it supplied to the New York City Interborough Railway Company 344,931 K.W.H. and to the Queens County Railway Company 486,400 K.W.H. The total amount generated by the relator during the period was 142,188,750 K.W.H. The supply to the latter companies was under a prior agreement that relator out of its surplus current not required in the operation of lines of railroad, owned, leased or operated by it would furnish electricity to enable them respectively to operate their lines of road. It appeared by the stipulation as in the other case in substance that relator's power house was designed for the needs of the system intended to be operated by it, and that during the year 1906 it had at all times on hand machinery and equipment capable of producing electrical current in excess of its immediate requirements and that the current furnished to the other companies was surplus current not required by the relator in the proper operation of its road. The only finding by the court was as in the other case that its main power house was not used exclusively for subway operation. There was no finding or stipulation that relator installed equipment in excess of what was reasonable and proper in the exercise of reasonable prudence and foresight for the purpose of enabling it to sell power. Apparently it sold an inconsequential amount of power produced at times in excess of its requirements by equipment which at other times or in the near future it might be required to use to its full capacity for the proper operation of its road. I do not think that the additional facts developed on this point justify any differentiation between the two cases. Of course it is not intended to say that facts might not appear or findings be made indicating a distinct plan on the part of the relator to install equipment *Page 328 beyond what was reasonable for its legitimate purposes with the object of generating and selling power at a profit. In such a case different considerations would be presented to us. We simply think that on the present appeal no such situation is presented.
The order appealed from should be modified as above indicated and the proceedings should be remitted to the Special Term for action in conformity herewith, without costs to either party.
CULLEN, Ch. J., HAIGHT, VANN, WERNER and COLLIN, JJ., concur; GRAY, J., absent.
Ordered accordingly.