I concur in the opinion of Judge WERNER. So far as it is contended that the relator is exempt from taxation with respect to its subway operations, by virtue of section 35 of the Rapid Transit Act, the point is the same as that presented in Peopleex rel. Cornell Steamboat Company v. Sohmer (206 N.Y. 651). The tax is imposed on the relator not for the franchise of *Page 276 operating the subway, but for being a corporation and operating the subway in that capacity instead of as individuals, partners or tenants in common. There is nothing in the section of the Rapid Transit Act cited that gives the person or persons who contract with the municipality the right to be a corporation, and what the relator is now charged for is merely that privilege.
WILLARD BARTLETT, HISCOCK, CHASE, COLLIN and HOGAN, JJ., concur with WERNER, J., and CULLEN, Ch. J., concurs in memorandum.
Order affirmed.