author: Bartlett, J.

text:
    Henry C. Wintringham, Resp’t, v. J. Noble Hayes, App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Evidence—Opinion—Hypothetical.
    When the testimony of experts is proper, counsel may assume the exist ence of any state of facts which the evidence tends to justify.
    2. Same.
    • The testimony of an expert as to whether the injuries shown to have been sustained by a yacht are the result of ordinary wear and tear, is competent.
    3. Bailment—Negligence.
    In an action against a bailee for loss or damage to goods by accident, proof of the nature of the accident may afford prima facie evidence of negligence.
    4. Same
    Where the owner is able to prove the condition of the yacht when delivered to the bailee, the nature of the subsequent injuries she sustained, and that they were not the result of ordinary wear and tear, he makes out a prima facie case of negligence, sufficient to cast upon the bailee the burden of rebutting such presumption.
    Appeal from judgment of the general term of the city court of Brooklyn, entered upon an order, which modified and affirmed as modified a judgment in favor of plaintiff entered upon the report of a referee.

      J. Noble Hayes, for app’lt; R. Burnham Moffat, for resp’t.

       Reversing 52 St. Rep. 858.

   Bartlett, J.

This is an appeal by the defendant from a judgment of the general term of the city court of Brooklyn modifying and affirming a judgment for plaintiff on trial before a referee.

The plaintiff, a yacht builder, sued for services rendered and materials furnished to defendant’s yacht, White Wing.

The defendant contested the plaintiff’s claim and set up two counterclaims; the first alleged that plaintiff was indebted to the defendant in the sum of five hundred dollars for damages growing out of plaintiff's negligence in the performance of a contract to give a mooring berth and take care of defendant’s yacht, White Wing, while out of commission; the second averred that plaintiff, through his negligence, had lost, or failed to deliver upon demand, to defendant, a yacht’s small boat of the value of sixty-five dollars.

The referee allowed the plaintiff’s demand and dismissed both counterclaims.

The general term held that the first counterclaim was improperly dismissed on the ground that certain evidence was erroneously excluded and that a presumptive case of negligence was made out against plaintiff.

Instead of reversing the judgment and ordering a new trial the general term held that the amount in dispute under the first counterclaim was thirty-six dollars, and that the judgment should be reduced by that amount and interest, making a total of forty-one dollars, and as so reduced should be affirmed, or in default of reduction reversed.

The plaintiff stipulated to reduce the judgment, and thereupon it was affirmed.

The general term was obviously in error in holding that thirty-six dollars and interest was the amount involved under the first counterclaim.

The defendant claimed that his yacht, while in plaintiff’s custody, was seriously damaged and demanded $500. The defendant, under cross-examination, testified that in a conversation with the plaintiff, the latter said that to make temporary repairs of the yacht and to put it in shape where injuries would not go any farther it would cost about thirty-six dollars. The defendant then adds: “ I am not able to recollect fully what the repairs were beyond they were temporary. It was not pretended that they would put the boat back in her original shape.” This is not denied by plaintiff, although he was afterwards recalled as a witness several times.

The defendant sought to prove the amount of his damages under this counterclaim by calling as a witness Maurice D. Lawrence, a shipwright. This witness was put a hypothetical question which assumed the condition of the yacht before and after her injury, and then asked what it would cost to put the boat after the damage described in as good condition as she was assumed by the question to be at the time she was laid up. This question .was objected to and excluded.

We think this was error; the question was within the well-set-tied rule, as laid down by this court, that when testimony of experts is proper, counsel may- assume the existence of any state of facts which the evidence fairly tends to justify. Stearns v. Field, 90 N. Y. 641, and cases cited.

Defendant’s effort to make this proof is further evidence that the general term was mistaken is assuming that the amount in dispute was thirty-six dollars and interest.

We agree with the general term, that it was error in the referee to exclude the evidence of John Macdonald (a shipmaster, who-was in command of the White Wing the season before plaintiff took charge of her), when asked if the injuries to the yacht were the result of ordinary wear and tear.

While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet oftentimes slight evidence will shift the burden to the bailee. In an action against a bailee for loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence. The J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121.

In the case at bar if the defendant in support of his first counterclaim is able to prove the condition of the yacht when delivered to plaintiff, the nature of the subsequent injuries she sustained, and that they were not the result of ordinary wear and tear, he will have made out aprima facie case, and the burden of proof will be shifted to the plaintiff, who, as bailee, had the yacht exclusively within his control and should be able to show the manner in which he discharged his contract obligations in the premises. Curtis v. Rochester and Syracuse R. R. Co., 18 N. Y. 544; Collins v. Bennett, 46 id. 494. We, of course, express no-opinion as to the merits, but simply lay down the rule of evidence applicable to this case.

By reason of the errors disclosed in this record before the referee and at the general term there must be a new trial.

In view of this conclusion, it is unnecessary to examine the question presented by the dismissal of the second counterclaim.

The respondent’s point that the appeal should be dismissed, because the matter in controversy is less than $500, is not well taken.

The judgment appealed from is reversed, with costs to abide the event and a new trial ordered. ;

All concur. Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Valentine E. N. Cook, App’lt, v. The New York Elevated Railroad Company et al, Resp’ts.

      (Court of Appeals,

      Filed December 11, 1894.)

    1. Appeal—Court of appeals—Facts.
    In order to sustain a reversal by the general term on the facts, it must appear that the findings of the referee are against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result that it can be said, with a reasonable degree of certainty, that his conclusions were erroneous.
    2. Same—Findings.
    A refusal to find, though, in the abstract, error, is not reversible error, where the findings made render the request, if found, of no benefit to the appellant.
    3. Same.
    It is only when the court, in awarding damages, is guided by an erroneous rule, founded upon a refusal to find, that reversal will follow.

      4. Evidence—Elevated railway.
    Where, in an action against an elfevated railway for an injunction and damages, proof as to the actual rents, earned by the property, cannot be conveniently obtained, its place may be supplied by evidence equally convincing and satisfactory.
    5. Same.
    In such action, the plaintiff may call in expert testimony to establish the values of the fee and rental.
    Appeal from order of the general term of the court of common pleas for the city and county of Now York, entered on an order which reversed a judgment in favor of plaintiff entered upon the report of a referee and ordered a new trial.

      J. Aspinvjall Hodge, Jr., for app’lt; JReuhen Leslie Maynard, for resp’ts.

       Reversing 52 St. Rep. 253.

   Bartlett, J.

This is an appeal from the order of the court of common pleas for the city and county of New York reversing a judgment for plaintiff, entered upon the report of a referee and ordering a new trial. The plaintiff gives the usual stipulation. The reversal was upon questions of law and fact.

This action was brought for an injunction against the maintenance and operation of the elevated railroad in front of. the plaintiff’s premises No. 239 East Thirty-fourth street, between Second and Third avenues, in the city of New York, and asked damages for the pass trespass of the defendants.

The referee found the damages to be $676, and that the permanent value of the premises had been diminished to the extent of $1,500.

The judgment provided for an injunction, unless the latter sum is paid to plaintiff on his releasing and conveying the easements taken to the defendants.

In order to sustain this reversal by the general term on the facts it must appear that the findings of the referee are against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result that it can be said with a reasonable degree of certainty that his conclusions were erroneous. Barnard v. Gantz, 140 N. Y. 249. 253; 55 St. Rep. 541; Baird v. Mayor, etc., 96 N. Y. 567; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Devlin v. Greenwich Savings Bank, 125 N. Y. 756; 35 St. Rep. 922.

The general term, held there was no sufficient proof of damage to the fee value of plaintiff’s premises, nor of diminution of rental value traceable directly to the construction, maintenance or operation of the defendants’ railroad.

A perusal of the evidence satisfies us that the damage to the fee value and diminution of rental value are abundantly established, and that the amounts fixed by the referee are exceedingly moderate in view of all the proofs.

The general term laid great stress upon the fact that the proofs as to the actual rents earned by the property in contrbvery were not more complete.

While such testimony is desirable when it can be conveniently obtained, it by no means follows that its place cannot be supplied by evidence equally convincing and satisfactory.

The failure to show actual rentals during certain periods was fully explained, and expert testimony was furnished covering the time involved in this controversy. -

It was also proved that similar properties on the same street were injured in their rental values for about twenty-five to forty per cent.

It was proved that rentals in neighboring streets had increased during the same period.

In regard to the fee value of plaintiff’s property the proofs are equally satisfactory.

The finding of the learned referee is based upon the effect of the railroad on the fee value of the property in question of similar property in the same street, and the rise in values in neighboring streets.

We do not deem it important to deal with the evidence in detail and point out each particular item of proof which supports the findings of the referee.

It was competent for the plaintiff to call in expert testimony to establish the values of the fee and rental. Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455, 473; 40 St. Rep. 454.

The general term held that there was not only the failure of proof on the part of the plaintiff already adverted to, but that the refusal of the referee to find at defendants’ request that the easements appurtenant to the plaintiff’s land, taken for the railway use, aside from any damage to the land from the taking, have, in themselves, only a nominal value, was reversible error.

The cases cited in support of this proposition are Bookman v. N. Y. El. R. R. Co., 137 N. Y. 302; 50 St. Rep. 703; Sutro v. N. Y. El. R. R. Co., 137 N. Y. 592; 50 St. Rep. 701.

In the Bookman' case a refusal to find a similar request was held error.

Judge Eabl said (p. 304): “ This request shall have been found and the refusal to find the facts shows that the court misapprehended the principles of law laid down in the cases of Newman v. Met. El. R. R. Co., 118 N. Y. 618; 50 St. Rep. 36, and Bohm v. The Same, 129 N. Y. 576; 42 St. Rep. 247. According to those principles the defendants were bound to pay the value of any property they actually took without any allowance against such value for benefits, and the allowance for benefits could be made only in the reduction of consequential damages. Hence it was important for the defendant to have a finding that substantially all the damages were consequential, so as to give room for the allowance of benefits.”

In the case at bar there is a finding, supported by the evidence, that there were no actual, substantial or peculiar benefits to the property in suit arising from the construction or maintenance of the defendants’ railroad in front of plaintiff’s premises.

This being so, the refusal to find was immaterial, although in the abstract it was error.

It is only when it appears that the court, in awarding damages was guided by an erroneous rule founded upon a refusal to find that reversal should follow. Sixth Ave. R. R. Co. v. Metropolitan El. R. R. Co., 138 N. Y. 548; 53 St. Rep. 181; Bischoff v. N. Y. El. R. R. Co., 138 N. Y. 257; 52 St. Rep. 374.

The order of the general term should be reversed and the judgment entered upon the report of the referee 'affirmed, with costs in all courts.

All concur. Ordered accordingly.


author: Earl, J.

text:
    The People, App’lt, v. Charles W. Gardner, Resp't.

      (Court of Appeals,

      Filed December 11, 1894.)

    1. Extortion—Attempt to commit.
    Where a threat is made with intent to commit the crime of extortion, and tends, but fails, to effect its commission, it is plainly, within the statute, an attempt to commit the crime.
    3. Same.
    Such crime depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced.
    3. Same.
    The accused cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.
    4. Trial—Identification—Criminal cases.
    It is not error, in a criminal case, for the court to compel the defendant to stand up for identification.
    5. Evidence—Extortion.
    On the trial of an indictment for an attempt to commit the crime of extortion, the defendant may, in order to show the reason for his intimacy^ and rides with and visits to and with the prosecutrix, which were established by the prosecution, prove that he acted, in so doing, under the general instructions of the Society for the Prevention of Crime, whose agent he was, and that he reported his acts to its officers and followed ■their directions.
    Appeal from judgment of the general term of the supreme court in the .first judicial department, entered upon an order, which reversed a judgment of the court of general sessions of the peace in and for the city and county of New York, entered upon a verdict convicting defendant of an attempt to commit the crime of extortion.

      Henry B. B. Stapler, for app’lt; John W. Goff, for resp’t.

       Modifying and affirming 57 St. Rep. 18.

   Earl, J.

The defendant was indicted and upon his trial convicted of an attempt to commit the crime of extortion in the city of New York on the 4th day of December, 1892, by attempting to obtain $150 from Catharine Amos by threatening to accuse her of keeping a house of prostitution. The following are the sections of the Penal Code under which he was convicted: See. 552, “ Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right; ” § 553, “ Fear, such as will constitute extortion, may be induced by a threat ” (among other things) “to accuse a person of any crime; ” § 34, “ An act done with intent to commit a crime, and tending, but failing, to effect its commission, is an attempt to commit that crime; ” § 685, “ A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.”

Catharine Amos, who was the principal witness for the People, testified that for nine years she had been the keeper of a house of prostitution in the city of New York, and that the defendant, in December, 1892, came to her and agreed with her that if she would pay certain sums of money to him, and especially the sum of $150, he would not accuse her of the crime, and that from October 19, 1892, to December 4, 1892, she had been acting as a decoy of the police and trying to induce the defendant to receive money from her under such circumstances as would render him guilty of a crime and enable the police to arrest and convict him of it.

The evidence tended to show the existence of every element constituting the crime of extortion except that Mrs. Amos, in paying the money exacted by the defendant, was not actuated by fear.

.It is urged on behalf of the defendant that the fact that his threats did not inspire fear inducing any action on the part of Mrs. Amos, an element essential to constitute the completed crime of extortion, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion, and so a majority of the judges constituting the general term held. Y7e are of opinion that those learned judges fell into error.

The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission, and, therefore, the act was plainly within the statute an attempt to commit the crime. The condition of Mrs. Arnos’ mind was unknown to the defendant. If it had been such as he supposed, the crime could have been and probably would have been consummated. His guilt was just as great as if he had actually succeeded in his purpose. His wicked motive was the same, and he had brought himself fully and precisely within the letter and policy of the Jaw. This crime, as defined in the statute, depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced. As said in People v. Moran, 123 N. Y. 254; 33 St. Rep. 397, where the defendant was convicted of an attempt to commit the crime of larceny by thrusting his hand into the pocket of a woman which was not shown to contain anything, the question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor’s mind and his conduct in the consummation of his design. * * * An attempt is made when an opportunity occurs and the intending perpetrator had done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition." In Com monwealth v. Jacobs, 9 Allen, 274, the defendant was convicted of soliciting a person to leave the commonwealth for the purpose of enlisting in military service elsewhere, although such person was not fit to become a soldier, and there it was said: Whenever the law makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance. It is now the established law, both in England and in this country, that the crime of attempting to commit larceny may be committed, although there was no property to steal, and thus the full crime of larceny could not have been committed. Reg. v. Brown, 24 Q. B. Div., L. R. 357; Reg. v. Ring, 66 Law Times R. 300; Commonwealth v. McDonald, 5 Cush. 365; People v. Jones, 46 Mich. 441; State v. Wilson, 30 Conn. 500; Clark v. State, 86 Tenn. 511; State v. Beal, 37 Ohio St. 108; Rogers v. Commonwealth, 5 S. & R. 463; Hamilton v. State, 36 Ind. 280. In Rex v. Holden, Russ. & Ry. 154, it was held on an indictment under a statute against passing or disposing of forged bank notes, with intent to defraud, that it was no defense that those to whom the notes were passed knew them to be forged, and, therefore, could not be defrauded. In Reg. v. Goodchild, 2 Carr. & Kir. 293, and Reg. v. Goodall, 2 Cox Cr. C. 41, it was held under a statute making it a felony to administer poison or use any instrument with intent to procure the miscarriage of any woman, that the crime could be committed in a case where the woman was not pregnant. It has been held in several cases that there may be a conviction ■of an attempt to obtain property by false pretenses, although the person from whom the attempt was made knew at the time that the pretenses were false, and could not, therefore, be deceived. Regina v. Hensler, 11 Cox Cr. Cas. 570; Reg. v. Banks, 12 id. 393; Reg. v. Francis, id. 613; Reg. v. Rainford, 13 id. 9; Reg. v. Jarman, 14 id. 112; Reg. v. Eagleton, Dearsly’s Cr. Cas. 515; Reg. v. Roebuck, id. 24; Reg. v. Ball, 1 Carrington & Marshman, 249; People v. Stiles, 75 Cal. 570; Hamilton v. Sate, 36 Ind. 280; People v. Bush, 4 Hill, 133; People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Cr. Cas. 104; Mackesey v. People, 6 id. 114. And to the same effect are the text books on criminal law. 1 Bishop on Criminal Law, § 723, et seq. So far as I can discover there is absolutely no authority upholding the contention of the learned counsel for the defendant, that because the defendant did not inspire fear in the mind of Mrs. Amos by his threats, and thus could not have been guilty of the completed crime of extortion, therefore, he cannot be convicted of attempting to commit the -crime. That contention is, as I believe, also without any found a tian in principle of reason.

Therefore, upon the facts alleged in the indictment and appearing upon the trial, the defendant could be convicted of an attempt to commit the crime of extortion", and the general term, in reversing the judgment, should not, therefore, have refused to grant a new trial and have discharged the defendant.

Our attention has been called on behalf of the defendant to many other exceptions taken by his counsel during the progress of the trial which, it is claimed, point out errors. We have examined all of them, but do not deem it important to call particular attention to but two.

Upon the trial it was proved that defendant and Mrs. Amos were together upon certain occasions having a material bearing upon the case, and a witness was called to identify the defendant as the person who was 'in her company at one of the times and places referred to. The witness was asked: “ Do you know Mr. Gardner?” Answer : “I do not.” Question: “ Would you know him if you saw him?” Answer: “ Yes, sir.” Then the court directed the defendant to stand up. The defendant’s counsel objected to his standing up, or that he should be’compelled to stand up, or to testify against himself. The court replied: “ The prisoner will rise; stand him up.” And then, against the objection of his counsel, the defendant was forcible compelled to stand up, and then he was identified by the witness. It is. now claimed on his behalf that this action on the part of the court violated his constitutional rights by compelling him to be a witness against himself. N. Y. Constitution, art. 1, § 6; U. S. Constitution, amendment 5. We do not think that the defendant's constitutional right was violated, or that he was compelled, within the meaning of the constitutional provisions referred to, to give evidence against himself. He was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him, and he had the right to see them. It was necessary that he should be identified as the person named in the indictment and charged with the crime. His mere standing up did not identify him with the alleged crime, and did not disclose any act connected with the crime. There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he had come into court with his face veiled, could not the recorder compel him to remove the veil that his face might be seen ? Could he not compel him to remove his hat; to stand or sit in the prisoners’’ dock? In the examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos ? Instead of compelling the defendant to stand up, could not the recorder have directed the witness to go to the place where he was and look at him with the view of identifying him? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right was invaded by compelling him to stand up for the purpose of identification ? For the orderly conduct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court room, and whether at any time he shall stand or sit, and be covered or uncovered; and he must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses. The history of the conititutional provision referred to clearly demonstrates that it was not intended to reach a case like this. Story’s Com. Lim., § 1788; 1 Steph. Hist. Crim. L. 440. The main purpose of the provision was to prohibit the compulsory oral examination of prisoners before trial, or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the spirit and purpose of the inhibition. A murderer may be forcibly taken before his dying victim for identification, and the dying declarations of his victim may then be proved upon his trial for his identification. A thief may be forcibly examined and the stolen property may be taken from his person and brought into court for his condemnation. A prisoner’s person may be examined for marks and bruises, and then they may be proved upon his trial to establish his guilto and it would be stretching the constitutional inhibition too far t; make it cover such cases, and cases like this, and the inhibition thus applied would greatly embarrass the administration of justice. In Rice v. Rice, 47 N. J. Eq. R. 559, Beasley, C. J., said: “That every court of judicature, as an indispensable attribute, is possessed of the power to require every person who is present as a party, or who is a witness under examination, to disclose his or her face to the court or to the jury, if there be one, would not seem in any degree questionable. Without such exposure there would be no certainty who the person really was who assumed to act as party or witness. To order such persons to expose their faces to view is common usage in every court, and thus far the practice seems not to be open to any question.” Our attention is called to authorities bearing more or less upon the question we are now considering, and we find that they are not all harmonious. In State v. Jacobs, 5 Jones [N. C.], 259, it was held that a judge has no right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling' them to determine his status as a free negro. There the defendant was indicted as a free negro for carrying arms, and it became necessary for the prosecution to show that he was a negro, and in that state a man was held to be a negro who had as much as one-sixteenth part of African blood in his veins. There the defendant was compelled to stand up that the jury might see whether he was a negro or not, and to determine that fact from their own observation. Thus there was a sense in which it could be said that the defendant was compelled to furnish evidence against himself upon a vital issue to be tried, and so that case is distinguishable from this. But no authority was cited to uphold that decision, and we entertain no doubt that it was erroneous. The judge writing the opinion said: “Admitting that the state has a right to compel his presence at the trial, it does not follow that he is bound to stand or sit within view of the jury.” Can this observation be correct ? Certainly, in this state it cannot be maintained that a prisoner, when on trial, could not be. compelled to stand or sit in view of the jury. It is the right of the prisoner to be in the presence and view of the jury, and it is the right of the prosecution to have him in the view of the presiding judge and jury and the counsel engaged in the trial. And whether at any particular time he shall stand up or sit down in the presence of the jury must be a matter resting in the discretion of the trial judge, and in no sense can it be said that by the exercise of such discretion his constitutional right is involved.

In the case of the State v. Johnson, 67 N. C. R. 55, the defendant was on trial for rape, and on the trial the prosecutrix was asked by the prosecuting attorney to look around the court room and see if she could identify the guilty party, and she pointed to the prisoner and said, “That is the black rascal.” It was insisted that this was to make the prisoner furnish evidence against himself; that he had the right to be there and confront his accusers, and that for the state to take advantage of his presence to have him pointed out and identified placed him in the dilemma of either abandoning his constitutional right to be present or of affording the means of his conviction by its exercise. The court held against this intention, and that no error was committed. Suppose in that case the court had placed the prisoner where he would have been conspicuously in view of the court, the jury and the witnesses, and the prosecutrix had then identified him, would his constitutional right have been invaded? And if he had been compelled to stand up would he have been compelled within the meaning of the Constitution, to give evidence against himself? We think not. We are, therefore, of opinion that no error was committed in the case in compelling the defendant to stand up for identification.

It appeared upon the trial by the witnesses for the prosecution, that prior to the time of the alleged offense the defendant was much in the company of Mrs. Amos; that he visited her at her house; that she visited him at his house; that he frequently rode with her through the streets of New York, and visited saloons and drank wine with her. These facts were proved on the part of the prosecution to show his relations with Mrs. Amos and his motives, and as links in the chain showing the commission of the alleged crime. The defendant offered to show by himself and other witnesses that in his relations with Mrs. Amos he was acting under the directions of officers of the society for the prevention of crime, for the purpose of gaining her confidence and good will, and securing from her an affidavit which could be used for the arrest of a former agent of that society who was supposed to be engaged in extorting money from keepers of houses of prostitution by threats of prosecution, and the recorder excluded the evidence. It is now claimed that in such exclusion error was committed.

We think the evidence should have been received. The defendant should have been permitted to prove that he acted under the general instructions of the society for the prevention of crime whose agent he was, and that he reported his acts to its officers and followed their directions. Such proof would have had a tendency to put an innocent aspect upon his acts which would otherwise seem to be a part of the scheme to commit the crime with which he was charged. It is claimed on behalf of the People that the exclusion of this evidence was not harmful to the defendant as the facts were nevertheless proved. We have carefully read all the evidence, and we are not satisfied that the defendant did not suffer harm from the rulings complained of. The recorder had laid down the law by these rulings, and the defendant did not have the benefit of the evidence offered in the submission of the case to the jury. The case went to the jury with the rulings of the recorder during the progress of the trial that that kind of evidence was incompetent and illegal.

Other things transpired during the progress of the trial to which our attention has been called, which, though not presenting legal errors which would call foi’ a reversal of the judgment of conviction, were yet of such a character that they may have been harmful and probably were harmful to the defendant. We will not comment upon them, as they may not, and probably will not, appear upon another trial.

On account of the error above pointed out, while the general term should have reversed the judgment below, it should also have granted a new trial.

Our conclusion, therefore, is that the order of the general term should be so modified as simply to reverse the judgment of conviction and to grant a new trial.

All coucur. Ordered accordingly.


author: Gray, J.

text:
    In the Matter of Taxation under the Transfer Tax Acts of Property Belonging to the Estate of Nicholas Balleis, Deceased.

      (Court of Appeals,

      Filed December 11, 1894.)

    Tax—Transfer.
    The provision of § 2, chap. 399 of 1892, applies only to domestic corporations of the character specified.
    Appeal from order of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed an order of the surrogate’s" court of Kings county imposing a tax upon the transfer of certain property under the will of Nicholas Balleis, deceased.

      John B. Kuhn, D. W. Perhins, James McKeen and Hamilton Wallis, for app’lts; James W. Bidgway and Robert B. Bach, for resp’t.

       Affirming 60 St. Rep. 792.

   Gray, J.

By his will the testator divided his residuary estate among certain religious corporations, organized and existing under the laws of other states, and it is contended for them-that they are exempted from taxation under the provisions of chapter 399 of the Laws of 1892. The act of 1892 is. entitled “ An act in relation to taxable transfers of property,” and constitutes what is referred to, in common parlance, as the collateral inheritance tax law. The exemption is claimed by these appellants to be found in the concluding clause of the second section, which reads thus: “ But any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from and not subject to the provisions of this act.” By an act previously passed in 1890 (chap. 553 of Session Laws), an exemption from taxation upon personalty was declared in favor of religious corporations and it was therein, also, provided that the provisions of chapter 483 of the Laws of 1885 (which first imposed a tax upon the succession to' property by will, or by the intestate laws of the state), and of the amendatory acts, “ shall not apply thereto, nor to any gifts to any such corporation by grant, bequest or otherwise.” Whether this act applied to religious corporations created by the laws of other-states, was the subject of our consideration in the case of The Estate of Prime, 136 N. Y. 350; 49 St. Rep. 658, and we held that its application could only be to corporations created by the laws of this state. The authority of that case is indisputable, and Chief Judge Andrews, who delivered the opinion of the court, discussed the question with such attention as to render it unnecessary to resume the discussion upon the present appeal. It wasthei’e said that “ a statute of a state gz-anting power’s and privileges to corpoz-ations must, in the absence of plain indications to the contraz-y, be held to apply only to corporations created by the state and over which it has the power of visitation and control., * * * The legislature, in such cases, is dealing with its own creations, whose rights and obligations it may limit, define and control." It is attempted to distinguish the Prime Case from the one before us, upon the ground that the act of 1890 related only to domestic charitable and religious corporations, and was conferring especial privileges upon them, among which was that of certain relief from taxation. The argument appears to be that, as that act was not repealed, and as domestic corporations remained exempted thereunder, the act of 1892 must, logically, be deemed to have referezzee, in its grant of exemption from taxation, to foreign religious corporations, which had not been exempted by foz’ce of prior legislation. But the answer to the argument is plain, I think. Chapter 399 of the Laws of 1892, in question, was enacted as a general act in relation to the taxation of transfers of property from a decedent, by will, or by the intestate laws, or by gift in contemplation of the death of the donor. It was intended as the general law of the state upon the subject and its exeznption of “any property * * * devised or bequeathed * * * to any religious coi’poz-ation ” should receive the same construction, as a similar provision in a prior act had received. The prior act was, undoubtedly, concerned with the grant of privileges to domestic corporations; but the act of 1892 was legislating with respect to subjects within the jurisdiction of the state, and the provision modifying the legislation, as it affected certain corporations, must be considered in the light ot an exez’cise of the sovereign power within territorial limits. In ereating this particular plan for the taxation of all property transferred to others upon, or in contemplation of, the death of its owner, the declaration of an exemption in favor of religious corporations, even though it might already exist under previous legislation, was a wise, if a superfluous, "provision. To say that it was intended to include foreign religious corporations, would be to imply the grant of a privilege by the legislature, without sufficient indications of an intention so contrary to ordinary statepolicy and to usual statutory presumptions. This we should not do. The legislation in question dealt with property within the state and imposed a tax, in certain cases, upon its transfer to other persons, or to corporations. In proceeding, thereupon, to confer the privilege of an exemption from its provisions, in the case of any religious corporation, the legislature must be deemed to have in mind those corporations which were the creation of the state and not those in which it had no interest and over which it had no control. As Judge Andrews further observed, in the Prime (Jase, “It is not the proper function of a state to go outside of its own limits and devote its resources to support the cause of religious education, or missions for the benefit of mankind at large.” It is our opinion that the correct and the natural construction of this provision of the act of 1892 is to confine its operation to religious corporations created by the state. The order appealed from should be affirmed, with costs.

All concur. Order affirmed.


text:
    H. Koehler & Co., Resp’t, v. James W. Brady, App’lt.

      (Court of Appeals,

      Filed December 11, 1894.)

    Injunction—Landlord and tenant.
    In an action by the assignee of the tenant for the redemption of the lease from a forfeiture for non-payment of rent, a preliminary injunction restraining the landlord, who is in possession, from removing from the premises the personal property placed therein by the tenant, is improperly granted.
    Appeal from order of the general term’ of the supreme court in the first judicial department, entered upon an order, which reversed an order of special term denying a motion by pláintiff for a temporary injunction and granted such motion.

      Wm. E. Wyatt, for app’lt; Emanuel J. Myers, for resp’t,

       Reversing, 61 St. Rep. 49.

   Earl, J.

The defendant owned a building in the city of Mew York, and in May, 1892, be leased a portion thereof to Daniel J. Foley for a saloon. Foley took possession of the saloon and put certain personal property therein necessary for his business as a saloon keeper, and in July, 1892, he assigned his lease and conveyed his personal property to Jacob Wissman, who took possession. In October, 1892, he sold the property and assigned the lease to James J. McGrinn. While McGrinn was in possession of the saloon he borrowed $1,800 of the plaintiff, and as security for the loan gave it a mortgage upon the personal property in the saloon, and assigned to it the lease. McGinn remained in possession of the saloon and the property, and afterward assigned the lease and sold the property to John E. McCabe. The lease provided for a forfeiture thereof for default in the payment of the rent reserved and for-re-entry by the landlord in case of such default. After the sale and assignment to McCabe, for default in the payment of the rent, the defendant took possession of the saloon, the personal property being therein, and at the commencement of this action he was in possession of the saloon, claiming to have such possession as owner thereof. Thereafter' he gave the plaintiff notice to remove the personal property from the saloon, and that if it did not do so, he would remove it. It then commenced this action.

The complaint is very imperfectly and unskillfully drawn, and from the allegations therein contained it is not easy to determine upon what theory the plaintiff claims to maintain this action, and precisely what relief it may be entitled to have awarded. I will, .however, assume that the action is for the redemption of the lease from the forfeiture, and that the complaint is adequate to enable the plaintiff to have relief that the rent in arrears be determined, and that upon payment thereof the possession of the saloon be awarded to it.

At the commencement of the action the plaintiff obtained a preliminary injunction restraining the defendant from removing the personal property covered by its mortgage from the saloon. That injunction, upon the application of the defendant, was vacated at the special term, but upon appeal by the plaintiff to the general term the order of the special term was reversed and the injunction restraining the defendant from removing the property from the saloon was reinstated; and this appeal is from the order of the general term.

The defendant being in the actual possession of the saloon, and claiming to be rightfully in possession as owner, cannot be removed therefrom by the plaintiff, except by the successful termination of this action in its favor; and the sole purpose of the injunction is to restrain him from removing the personal property from the saloon during the pendency of the action. During that time it cannot carry on the saloon or enjoy the good will thereof, or make any use whatever of the personal property contained therein. The sole purpose and effect of the injunction, if maintained, is to secure the storage of the personal property in the saloon during, the pendency of the action. The following is a list of the personal property covered by the mortgage:

“ One back and back bar with fixtures attached.
“ One iron foot rail and hand rail attached.
“ One ice box in store.
“ One summer door.
“ One six-pull ale pump and connections.
“All glassware and glasses.
“Four tables.
“Five chairs.
“ One looking glass in back of store.
“ Two brass beer taps and one mallet.
“ One water closet and urinal.
“ One clock.
“All demijohns, etc.
“And all other goods, chattels and fixtures on said premises not hereinbefore specifically mentioned, excepting stock in trade.”

There is no precedent for such an injunction. The defendant does not threaten to destroy or injure the personal property, or to sell, dispose of or secrete it. He has simply given the plaintiff notice to remove it, and that if he does not remove it he will do so. In pursuance of that notice it can go to the.saloon and take its property and keep it, and in case of success in this action it can again place the same property in the saloon and enjoy it in connection with its lease. If it does not wish to take the property out of the saloon it can wait until the defendant removes it and then take it and care for it. If it does not choose to take the property it can leave it, and if the defendant injures or' destroys it, so far as we can see, there being no question as to the defendant’s pecuniary ability, it would have a complete remedy at law for the value 'of the property or for injury thereto. The property is of such a character that it is manifest that it could be easily replaced if it were lost or destroyed, and in no aspect of the case - does the plaintiff need the interference of a court of equity by an inj unction for his protection.

We are, therefore, of opinion that the order of the general term should be reversed and that of the special term affirmed with costs in the supreme court and in this court.

All concur. Ordered accordingly.


text:
    Alice Crocker et al., Pl’ffs, v. Lester A. Lewis et al., Resp’ts.

      (Court of Appeals,

      Filed December 11, 1894.)

    Lis pendens—Effect of notice.
    Under § 1671 of the Code, notice of Ms pendens in an action to restrain the violation of a covenant restricting use of land, does not give a judgment in favor of plaintiff for costs priority over a mortgage on the land, given and recorded after the filing of such notice but before the rendition of such judgment.
    Appeal from order of the general term of the supreme court in the second judicial department, entered upon an order, which reversed an order of special term denying a motion to confirm the referee’s report ns to surplus moneys arising upon a sale herein.

      William C. Beecher, for app’lt; Josiah T. Marean, for resp’t.
   Gray, J.

Upon the sale in foreclosure, in this action, there resulted a surplus, which is claimed, on the one hand, by the respondents, by virtue of their mortgage, and, on the other hand, by the appellant, by virtue of a judgment for costs, recovered by him in a suit, notice of pendency of which was filed before the respondents took their mortgage. The respondents’ mortgage was junior to the plaintiffs’ ;■ but, prior to its making, Lewis, the appellant, had commenced an action in the city. court of Brooklyn, against the mortgagor of the property, Gollner, to restrain him from erecting flats or apartment houses, in violation of a certain agreement theretofore made by him, and a notice of the pendency of the action had been duty filed. Lewis’ action proceeded, until, eventually, he had final judgment in his favor, perpetually restraining Gollner and his wife “and all persons claiming under them, etc.,” as prayed for and adjudging that he “ recover of the defendants Gollner” the taxed costs and that he “have execution therefor.” A transcript of this judgment was then docketed in the county clerk’s office. The sale of the property in question was had under a decree which directed it to be made “ subject to the rights, equities and easements ” of Lewis in and to the property, as adjudged in the judgment of the city court. It is argued in behalf of the appellant here, Lewis, that though his judgment for costs was recovered after the execution and recording of the mortgage to the respondents Watson and Pittinger, yet, because of the filing of a notice of the pendency of the action, the judgment must be regarded as taking effect from the timé of such filing and, therefore, as impressing a lien for costs upon the property superior to that of the respondents' mortgage. In the distribution of surplus moneys the court, however guided by equitable rules in its determination of the priorities of claimants, does not proceed arbitrarily, nor with disregard of legal principles. The question •here, as to whether the one, or the other of the two claimants has the superior equity in the moneys now representing the mortgaged property, must be governed, not by any inquiries into, or surmise as to, the knowledge of Watson and Pittinger as to Lewis’ rights, or as to their motives in taking a mortgage from Gollner, but by a consideration of what advantage or security Lewis acquired over them by his prior filing of a notice of the pendency of his equitable action. Watson and Pittinger’s rights in the land were wholly subordinated to Lewis’ rights, as they should be established by the future decree. They took their mortgage upon the property, subject to whatever equities or claims the judgment in the action should thereafter charge upon it. The Code provides (§ 1671), with respect to the effect of filing the notice of Us pendens, that a subsequent incumbrancer is “ bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action.” Hence, when, eventually, Lewis reach judgment in his favor in his equitable action, his rights and interests in, or about, the property, or the surplus fund, which became substituted for the property, were, and could only be, precisely what that judgment should describe them to be. That judgment, while adjudging to Lewis certain rights or easements in the property, did not charge the costs upon it, but, merely, gave to Lewis a judgment against Gollner personalty for them. The property never became subjected to any lien for costs by virtue of the judgment recovered in the action in the city court. It was the filing of a transcript of that judgment with the county clerk, as prescribed by the statute, which created a lien for the costs upon the judgment debtor’s property. Full effect is given to the provision of the Code, in subjecting the rights of Watson and Pittinger, under the mortgage, to the decree of the court in Lewis’ action, for the proceedings in the action resulted in a judgment which only charged Gollner’s property with the restrictions mentioned in the agreement, the enforcement of the provisions of which was the ground of the action. Had Watson and Pittinger been actual parties to Lewis’ action, the judgment recovered would only have affected the mortgage to them to the extent of cutting down the interest, or use of the mortgagor in the property mprtgaged. Lewis’ action was in rem and however the res should be affected as its results, so would the mortgaged interest be affected.

We think the order of the general term was right and that it should be affirmed, with costs.

All concur. Order affirmed.

      Affirming, 61 St. Rep. 503.


author: Andrews, Ch. J.

text:
    The People ex rel. The Equitable Gas Light Company, Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts.

      (Court of Appeals,

      Filed December 4, 1894.)

    1. Taxes—Corporation.
    In order to ascertain the capital of a corporation subject to taxation, debts are deductible
    2. Same.
    But an unimpaired capital implies that there are assets over and above the capital, sufficient to pay any outstanding debts.
    3. Same.
    In such case, the commissioners are not bound to deduct the debts.
    4. Same.
    It is immaterial in which description of property the capital is invested
    5. Same.
    The real and personal property are to be considered and valued, and from the aggregate value is to be deducted the assessed value of the real estate.
    6. Same.
    The assessed value of the real estate does not preclude the commissioners from estimating it at its actual cost.
    7. .Same.
    The commissioners are not concluded by the statements of the applicant.
    8. ‘Same.
    The matter is finally remitted to their judgment and decision upon all the facts and proceedings, including the evidence of the applicant and any other facts, known to them and brought to their attention, bearing upon the question.
    9. Same.
    They have a right to act upon evidence outside of that furnished by the applicant.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of special term which set aside an assessment of the relator’s capital for taxation for the year 1893.

      D. J. Dean, for app’Jts: Frederic B. Coudert, for resp’t.

       Reversing, 62 St. Rep. 563.

   Andrews, Ch. J.

This is an appeal from the order of the general term, affirming the order of the special term, by which the assessment for the relator’s capital for taxation for the year 1893 was vacated and set aside. The relator is a corporation organized under the law for the incorporation of gas light companies, with a capital of $4,000,000, fully paid in or secured to be paid, and whose place of business is the city and county of New York. In the annual record of the assessed valuation of real and personal estate in said city and county for the year 1893, was entered the sum of $5,000,000 as the-value of the relator’s capital liable to assessment. Thereafter, pursuant to the provisions of § 820 of the Consolidation Act of 1882, the corporation made application to the commissioners of taxes for a reduction and cancellation of the assessment, and presented to the board a verified statement, and its vice-president was orally examined by the commissioners in support of the application. The commissioners subsequently decided the application and reduced the assessment to the sum of $1,972,700.' The relator being dissatisfied with the decision and claiming that upon the proof it bad no assets subject to taxation in the year 1893, procured a certiorari under chap. 269 of the Laws of 1880, to review the proceedings of the commissioners, to which a return was made by them, and upon the hearing the' order was made setting aside the assessment The sole question relates to the jurisdiction of the commissioners of taxes to make the assessment of the relator’s property as finally entered in the roll.

Section 4 of the act of 1880, under which the relator proceeded, provides that “if it shall appear by the return to such writ that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have power to order such assessment, if illegal, to be stricken from the roll.” The complaint is that the assessment was illegal for the reason that the relator had no capital subject to taxation in the year 1893. It was represented in the statement presented to the commissioners by the' relator that its real estate, “ as per sworn valuation of the deputy tax commissioner,” was of the value of $1,515,400, and that its total personal property was of the value of $1,041,483.43, making the aggregate value of its whole property, real and personal, the sum of $2,556,883.48. In the items of its personal property is included patent rights and franchises valued at $500,000, and no claim is made that it was entitled to any exemption of any other part of its personal estate from taxation. The statement further represents that the debts of the relator were $2,839,192.98. It thus was made to appear that the debts exceeded the total assets in the sum of $282,309.55, or, in other words, that the relator was an insolvent corporation, and that its capital of $4,000,000, which had been wholly paid in- or secured to be paid, had been wholly lost. But notwithstanding this condition of the relator’s affairs, the statement contained the further representation that during the year 1892 the surplus earnings of the corporation over and above operating expenses, leakage, bad debts and depreciation of plant had been $331,777.25, out of which a dividend of eight per cent, on the stock, amounting in the aggregate $320,000, had been declared and paid by the company. The presentation of a statement showing that an insolvent corporation was doing, nevertheless, a highly successful business, and that out of its net earnings was able to pay a large dividend to its stockholders, naturally challenged inquiry. It was not asserted by the relator that it had sustained recent or large losses, and it gave no explanation of the apparent anomaly disclosed in a comparison of the several facts alleged in the statement. It -also appeared that the dividend declared in 1892 was not exceptional. A dividend at the same rate out of earnings was declared and paid in 1891. The computation upon which the commissioners reached the result stated in the corrected assessment roll appears in the return made to the writ. They regarded the capital of $4,000,000 as unimpaired. From this sum they deducted $1,527,300, the assessed value of the real estate, and the further sum of $500,000, the value of the patents and franchises, which left $1,972,700, the sum which they fixed upon as the portion of the relator’s capital liable to taxation. It will be observed that the assessors made no deduction of the debts from the amount of the capital stock. Debts are deductible in ascertaining the assessable value of the capital of a corporation. People ex rel. Edison E. I. Co. v. Barker et al., 139 N. Y. 55; 54 St. Rep. 444. But an unimpaired capital implies that there are assets over and above the capital sufficient to pay any outstanding debts, and, if the commissioners had a right to find as they did, that the capital of the relator was unimpaired, they were not bound to deduct the debts, since, presumably, they were offset by assets above the capital which otherwise would have been liable to taxation. The commissioners, in their return, referring to the statement presented by the relators, declared that they had “ carefully considered the same and accepted as true all the statements of fact therein contained.”

The statement contained nothing in terms upon the subject of the actual value of the relator’s real estate. It stated the assessed value only. The theory of the statute is that real estate for the purpose of taxation shall be assessed at its full value. The rule furmulated in the Bevised Statutes is that “ all real and personal estate shall be estimated by the assessors at its just and full value, as they would appraise the same in payment of a just debt due from a solvent debtor ” (1 Rev. St. § 17; Laws 1851, ch. 176), and under the Consolidation Act (§ 814) it is to be assessed “ at the sum for which such property under ordinary circumstances would sell.” But it is well known that this duty cast upon assessors is seldom performed, and that the taxation of real estate throughout' the state is generally upon an assessment which represents but part of its actual value. Assessment at the full value is the exception and not the rule. If the ratio between the actual value and. the value as assessed is uniform, no inequality of taxation would result, except, perhaps, in the distribution of the tax as between real and personal property, assuming that the assessors do not apply the same ratio in assessing personalty. Eeal and personal property are to be separately assessed. In case of an individual assessed for both, if the realty be undervalued, the loss cannot be made up by adding it to the assessment of the personally. But the law governing the taxation of corporations (Laws of 1857, ch. 456) requires the valuation of the whole property owned by the corporation, whether real or personal, ■ or both, in order to ascertain the capital which is the subject of taxation, People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433; 38 St. Rep. 237, and from the aggregate is to be deducted the assessed value of the real estate, and the balance is the capitál ■ subject to assessment, after deducting debts and any exemptions allowed by law. In assessing the capital of a corporation for the purpose of taxation, it is immaterial in which description of property the capital may be invested. Both its real and personal property are to be considered and valued, and from the aggregate value is to be deducted the assessed value of the real estate, for the obvious reason that to that extent a separate taxation is provided. People ex rel. Eq. Gas Light Co. v. Barker et al, 66 Hun, 21; 49 St. Rep. 428; aff’d, in this court in 137 N. Y. 554; 50 St. Rep. 930. In case of corporations it may happen that an undervaluation in the assessment of the real estate as such will be corrected in its valuation as part of the capital, and so the undervaluation may be remedied, and the whole property be subjected to taxation at its real value. The fact, therefore, that the assessed value of the relator’s real estate was $1,515,400.00, does not necessarily show that it was its full value, nor did it, we think, preclude the commissioners from estimating its value for the purpose of ascertaining the capital subject to táxation at its actual value, although it exceeded the assessed value. The act of the commissioners in undervaluing the real, estate in its assessment as such did not estop the public nor relieve them of the duty, in ascertaining the value of the capital, to estimate the real estate at its full value. We are not here concerned with any question of inequality of assessment as between the relator and other taxpayers. We hold that the commissioners could legally disregard the assessed value of the real estate in estimating the value of the capital, and the question of legality is the only point now in question. It remains to consider whether the facts stated in the return or those in connection with the undenied allegations in the petition, People ex rel. Peck v. Commissioners, 106 N. Y. 64; 8 St. Rep. 634, j ustified the assessment in question. The commissioners were the body intrusted with the duty of making assessments for purposes ef taxation. It is made the duty of the deputy tax commissioners in the first instance to fix the valuation of all taxable property in their respective districts and return the result to the commissioners. Consolidation Act, | 814.' When the annual record is made up, persons considering themselves aggrieved may apply to the commissioners for redress, and if the application relates to the amount of personal property it is the duty of the commissioners to examine the applicant on oath in respect to the complaint. But the commissioners are not concluded by the statements made by the applicant. The statute declares that upon such application, after Having examined the applicant under oath, the commissioners, “if in his or their judgment the assessment is erroneous, shall cause the same to be corrected and fix the amount of such assessment as they may believe to be just.” Sec. 820. The matter is finally remitted to their judgment and decision upon all the facts and proceedings, including the evidence of the applicant, and any other facts known to them and brought to their attention bearing upon the complaint. This principle has been frequently decided in similar cases. People ex rel. Buff. & S. L. R. R. Co. v. Barker, 48 N. Y. 77; People ex rel. Manhattan F. Ins. Co. v. Commissioners, 76 id. 64; People ex rel. Westchester F. Ins. Co. v. Commrs., 91 id. 574; People ex rel. Butchers' H. & M. Co. v. Asten, 100 id. 597.

We held in the case of People ex rel. Edison E. I. Co. v. Barker, 139 N. Y. 55; 54 St. Rep. 444, that the judgment of the commissioners was not a capricious and arbitrary one, and that when the proofs presented on the application are full, uncontradicted and credible, and show the assessment to have been erroneous, and it does not appear that the commissioners had or acted upon any other information, they cannot arbitrarily refuse to grant relief. The same rule was declared in a case between the same parties. 141 N. Y. 251; 56 St. Rep. 823.

In the present case there were circumstances tending to create question. The extraordinary fact that the corporation, although by its. statement insolvent, was paying large dividends out of earnings, has been adverted to, and no explanation is suggested. The statement also gave the assessed value of its real estate, and left it to inference and presumption that this was its actual value. But the commissioners, in compliance with the demand of the writ, set forth in their return the reasons upon which they acted. They referred, among other things, to the amount of paid-up capital, the earnings and dividends; the fact that the relator omitted to state the actual value of its stock, as required to do by the blank furnished by the commissioners, but substituted a different paper, and that it did not assert or claim that its capital stock was of less value than $4,000,000.

But the return, states a still further ground for their decision. It avers in substance that the relator in 1891 and 1892 filed verified statements in respect of the taxes of these years, and that the commissioners had before them these statements, and the evidence of the relator’s officers in proceedings brought to review the assessment of 1891, and the decisions of the supreme court and of this court ratifying the assessment of that year (66 Hun, 21; 49 St. Rep. 428; S. C., 137 N. Y. 544; 50 St. Rep. 930), and they averred that it appeared in those proceedings that the assets of the relator, in 1891, were worth more than $4,000,000 over and above all its debts and liabilities, and that the relator in that year declared a dividend of eight per cent, on its capital stock.

The commissioners further returned that, in their judgment, the shrinkage of value set forth in the statement of 1893 “ was fictitious and not real, and was accounted for by the fact that in 1891 the relator returned its actual assets, while in 1893 it returned only the assessed value of its real estate. ” A reference to the decision in 66 Hun, supra, shows that in 1891 the relator returned the value of its gross assets at $6,740,666.52, and that after deducting all its debts and exemptions, its assets exceeded its whole capital. The relator then claimed, as appears by the opinion, that five millions or more of its gross assets had been invested in real estate, lands, buildings, mains, etc., separately taxed, etc., and claimed to have the whole sum so invested deducted in estimating the value of its capital.

Enough has been stated to show, we think, that the commissioners were justified in distrusting the statement furnished by the relator as to the value of its assets in 1893. So far as it went the statement may have been true, but the omission to state the actual value of its real estate, and stating the assessed value only, afforded an opportunity to evade the real inquiry as to the value'"’' of the capital liable to taxation. It is true that "the relator’s capital may, have been depleted by losses between 1891 and 1893, but this was not suggested and seems inconsistent with the continued business prosperity which justified so large dividends from large earnings. The commissioners had a right to act upon evidence outside of that furnished by the relator. In making inquiry and collecting the facts, they are not bound by the strict rules which govern ordinary judicial proceedings. If they act in good faith upon their best judgment, upon reasonable grounds, and they do not err in the principle of assessment to the prejudice of the taxpayer, their decision cannot be overruled.

We think the order of the special and general terms should be reversed and that the proceedings of the commissioners should be affirmed. All concur. Ordered accordingly.


text:
    The People ex rel. Patrick Ready, Resp’t, v. The Mayor and Common Council of the City of Syracuse et al., App’lts.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Municipal corporation—Local improvements—Mandamus.
    Where the contract with the city for the construction of a sewer provides that no payment should be made to the relator “ until the cost of said work shall have been ascertained and assessed upon and collected from the taxpayers liable,” the relator, after the sewer is completed and accepted by the city and the costs thereof assessed upon the abutting property, part of which is collected and nothing further done, is entitled to a mandamus to compel the officers of the city, having the matter in charge, to proceed with their duties as required by law.

      2. Same—Certificate.
    Where the engineer, upon its completion and acceptance by him, is required to make up a final account and return the same to the common council, which is to approve the same, if satisfactory, such return and certificate are binding on the parties, and evidence tending to show them incorrect is incompetent.

      Appeal from order of the general term of the supreme court in the fourth judicial department, which reversed a judgment in favor of defendants, entered upon a decision of the court on trial at special term, denying an application by the relator for a peremptory writ of mandamus requiring the appellant to complete the collection of an assessment to compel the issue of bonds, and which granted a new trial.

      Charles H. Ide, for app’lts; T. M Hancock, Atty.-Gren., for resp’tf

      Affirming, 47 St. Rep. 581.

   Bartlett, J.

This is an appeal from an order of the general term, fourth department, reversing a final order and judgment of the special term, which denied relator’s application for a peremptory writ of mandamus to complete the collection of an assessment or to compel the issue of bonds in accordance with the charter of the city of Syracuse, in order to pay the relator for constructing a sewer.

This case was carefully examined by the general term and the ■questions of fact discussed at length; we agree with its conclusions and do not think it necessary to go over many of the points discussed in the opinion below.

We shall content ourselves with a statement of the points which we hold to be controlling.

There are certain admitted facts in this case. The relator entered into a contract with the city of Syracuse to construct a sewer in Fayette and Spruce streets; he built the sewer and delivered it to the city; the city has since tapped it and connected it with the sewers in Pine street and Beach street,.and it is now used to conduct the water from these connecting sewers; the work having been completed the city engineer duly certified the fact to the common council, and that body adopted a resolution directing the city assessors to assess upon the abutting property the costs of constructing the sewer, and this was accordingly done; the amount so assessed was $5,545.34; the amount of $1,516.60 was collected by the city treasurer and nothing further has been done to enforce the assessment; the common council declared its intention by resolution to issue improvement bonds to pay for the construction of the sewer. Confronted by this situation the relator sought by mandamus to compel the mayor, city treasurer and common council to perform their duties by collecting the balance of the tax assessed, or by issuing bonds as required by law.

It is urged by the counsel for the appellants that the relator has a perfect remedy at law and that the writ of mandamus was properly denied.

The contract provided that no payment should be made to the relator “ until the cost o£ said work shall have been ascertained and assessed upon and collected from the taxpayers liable to local taxation upon the same.”

KSTo action was, therefore, maintainable by the relator against the city, but his proper remedy was to compel, by mandamus, the officers of the city having the matter in charge to proceed with their duties as required by law. Hunt v. City of Utica, 18 N. Y. 442; Lake v. Trustees, 4 Denio, 520.

The return to the alternative writ set up several defenses, but those insisted on were that the sewer was not located at the depth required by the contract, and that the certificate of the engineer was given under a ■ mistaken idea of the facts and was false and incorrect.

' By the terms of the contract it was provided that all plans, explanations and directions necessary to carrying out the work should be given by the engineer and they should in all cases be complied with by the contractor.

It appears by the undisputed evidence in this case that the engineer acted under the clause of the contract and throughout the progress of the work gave the contractor the grade of the sewer by driving pegs into the earth, each containing figures indicating the excavation and grade at that particular point, and that the contractor followed the directions thus given him.

It is also undisputed that an inspector appointed by the city properly performed his duty as the work progressed.

The contract further provided that after the completion of the work the engineer “ shall make up his final account therefor, and upon his final acceptance of the work shall return to the common council said account duly verified by him, whereupon said common council shall review, and, when satisfactory, shall approve the same,” etc.

It was also provided that this return should be the account by which the amount of work done and amount of materials furnished under the contract should be computed.

The engineer returned the amount of work and materials at $5,241.24 and certified the amount to be correct and that the work had been performed and completed according to contract and specifications.

The city of Syracuse has never charged that this return was fraudulent nor has it complained of, or attacked the same in any way.

In this proceeding against the ministerial officers of the city it is alleged, as already intimated, that the return was given under a mistaken idea of the facts and that the certificate was false and'incorrect.

We are of opinion that neither the city nor its officers are in a situation to attack the return and certificate in this proceeding.

The city is not a party to the proceeding, and being bound by the return and certificate its ministerial officers are also bound thereby.

The undisputed evidence shows that the work was prosecuted under the constant supervision and inspection of the representatives of the city of Syracuse ; that it was accepted by the engineer under the terms of the contract; that the common council ratified that acceptance and set in motion the machinery of taxation to raise the money dué the relator, and that the city of Syracuse has for a long time been using the sewer.

Under these circumstances any evidence introduced tending to show 'the return and certificate incorrect was incompetent

The return and certificate of the engineer stand unimpeached and are binding upon both parties. Brady v. Mayor of New York, 132 N. Y. 415; 44 St. Rep. 613; Mulholland v. Mayor of New York, 113 N. Y. 631; 22 St. Rep. 347; People v. Stephens, 71 N. Y. 527; Dillon v. City of Syracuse, 29 St. Rep. 912.

The appellants, acting as ministerial officers of the city of Syracuse, stand as to the money already raised for the relator by taxation and in their hands, as do town railroad commissioners who have received money raised by tax to pay interest on town bonds. This court has held that the commissioners could not drawn in question the validity of the bonds even if the town had anthorized the defense by resolution of town meeting. First Nat. Bank of Oxford v. Wheeler, 72 N. Y. 201.

There seems to be no reason why the city of Syracuse should not pay the claim of the relator.

The order appealed from is affirmed, with costs in all the courts and judgment absolute is ordered in favor of the relator under the stipulation of the appellants.

All concur. Ordered accordingly.


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    Barbara Miller, Resp’t, v. Frederick P. Gilbert et al., App’lts, et al., Resp’t.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Will—Construction.
    Where a gift is absolute and the time of payment only is postponed, the-gift vests at once.
    2. Same.
    In such case, a direction to sell and divide cannot be regarded as a gift to take effect at the death of the life-tenant, but rather a suggested mode of division in lieu of legal proceedings.
    Appeal from order of the general term of the city court of Brooklyn, which overruled the appellants’ exceptions and denied a motion for a new trial. Also appeal from an order amending the above order.

      William Sullivan and Hugh A. McTernan, for app’lts; F. M Dana, for resp’t; Edgar Whitlock, for resp’t, McClellan.

      Affirming 51 St. Rep. 132.

   Bartlett, J.

This is an appeal from an order of the general term of the city court of Brooklyn, denying a motion for a new trial made by defendants Frederick P. Gilbert et al.

Also an appeal from an order amending the above order.

This action was brought to partition certain real estate in the city of Brooklyn, of which Baphael Gilbert died seized, and involves the construction of his will.

The testator died June 6, 1863, leaving him surviving his widow and four sons, Philo, Wesley, Henry and Wilbur.

The will is holographic and. bears upon its face evidences of having been drawn by one wholly without legal training and of . very limited general education.

The clause of the will to be construed reads as follows, viz.:

“ Be it known by these premises, to all whom it may concern, that I, Raphael Gilbert, of the city of Brooklyn,-in the state of New York and of the United States of America, do give to my wife Maria on the day of my death a free and uncontrollable use and occupancy of my houses and lots situated No. 121 Prospect street, 151 York street and 335 Bridge street, as long as she shall continue my widow, but if she shall cease to be my widow by death, then the aforesaid houses and lots shall be sold and the moneys arising therefrom shall be equally divided among my children, viz.:.Philo Baker Gilbert, Wesley Carlo Gilbert, Henry Still Gilbert, Wilbur Fisk Gilbert or their heirs. But if she shall cease to be my widow by marriage, then the aforesaid houses and lots shall be sold, and one-half of the moneys arising therefrom-shall be hers, to be used for her benefit and comfort so long as she shall ‘live, and then it shall revert back to my children and be equally divided among them; and the other one-half of the moneys arising from the sale of the aforesaid houses and lots, shall be equally divided among my children as aforesaid.”

The sons Henry and Wesley survived their mother, and after her death Henry acquired Wesley’s share and owns one-half of the veal estate in dispute.

The son Wilbur survived the testator but predeceased his' mother, having in his lifetime conveyed one -quarter interest in the premises in question to the plaintiff, Barbara Miller.

The son Philo also survived the testator but died before his mother. During his life his alleged interest in one-quarter of the real estate was sold in bankruptcy proceedings and passed to the defendant Carrie G. McClellan.

The question now presented is, did the fee of this real estate vest in the four sons of testator at his death, or was there an equitable conversion into money and a bequest thereof to take effect on the death of the widow, thus vesting the shares of the deceased sons, Wilbur and Philo, in their children to the exclusion of plaintiff and the defendant Carrie G. McClellan?

The court below held the fee vested in testator’s four sons at the time of his death.

The heirs of the sons Philo and Wilbur appeal to this court.

The counsel for the appellant urges that there is an equitable conversion and that the bequest to the sons was contingent and not vested, because the gift is found in a direction to divide at a future time.

It has been often held that if futurity is annexed to the substance of the gift the vesting is suspended; but where the gift is absolute and the time of payment, only is postponed the gift is not suspended but vests at once. Smith v. Edwards, 88 N. Y. 103.

It is also a well-settled rule that if the language of the bequest is doubtful resort shall be had to that primary canon of construetian which holds that the intent of the testator collected from the entire will must prevail'; and that general rules adopted by the courts in aid of the interpretation of wills must give way where their application in any particular case would defeat the intention. Goebel v. Wolf 113 N. Y. 412; 23 St. Rep. 176; Ritch v. Hawxhurst, 114 N. Y. 512; 23 St. Rep. 919.

On reading testator’s will we are satisfied he intended to create a life estate in his wife and vest the fee at his death in his four sons.

It is true the fee is not disposed of in terms, but it is apparent from the general language of the will that the testator supposed he had vested the fee in his sons, and it was his intention to do so.

In the clause where he speaks of his widow ceasing to be such by marriage he says: “ The aforesaid houses and lots shall be sold, and one-half the moneys arising thereupon shall be hers, to be used for her benefit and comfort so long as she shall live, and then it shall revert back to my children and be equally divided among them.” 0

It may be fairly inferred from this language that the testator supposed the fee at the time of the sale would be in his sons.

The general scheme of the will is very clear and leads to the same result.

Dealing with his real estate, the testator evidently intended the widow was to have a life estate and the sons the fee; on the death of the widow, the real estate was to be sold and proceeds divided between the sons; if the widow married, a sale was directed and half the proceeds were divided at once between the sons, and the widow had the use of the other half for life and then principal reverted to the sons. The same disposition practically is made of the personal property.

The scheme of the will is consistent and clear, although the instrument is inartificially drawn. There is no equitable conversion in any event, but, even under the appellants’ construction, it is not contended there was conversion from the death of the testator, "but from the death of the widow, so the fee at testator’s death passed to the four sons.

It is also urged by the appellants’ counsel that the words “ or their heirs ” in the clause of the will under consideration disclose the intent to substitute a deceased son’s issue for the son himself in case the latter died at any time before the widow.

It is difficult to say what was in the mind of this illiterate testator when he employed these words; he may have improperly deemed them essential in framing an absolute devise to the sons. 2 R. S. p. 66, § 52.

It is quite inconceivable that he supposed the words created a substitutionary bequest or devise in the event of the death of a son before his mother, but it may more reasonably be assumed they were ignorantly used; it is a case where the court might well substitute “and” for “or.” Roome v. Phillips, 24 N. Y. 463; Jackson v. Blansham, 6 Johns. 56.

If these words are given the full force and effect claimed for them, they would fall within the rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and that if such devisee survives the testator, he takes an absolute fee. Stokes v. Weston, 142 N. Y. 433; 59 St. Rep. 811, and cases cited.

The fee having passed to the sons at the testator’s death, as already intimated, the direction to sell and divide cannot be regarded as a gift to take effect at the death of the widow, but rather a suggested mode of division in lieu of legal proceedings.

The will does not disclose the intention to create a trust or a power in trust, and even fails to appoint an executor.

It is evident the testator intended the sales suggested by him should be made by his sons, or the widow and his sons, as the case might be.

The general principles controlling the case have been recently discussed and applied by this court. Matter of Tienken, 131 N. Y. 391; 43 St. Rep. 184.

The orders appealed from should be affirmed, with costs.

All concur. Orders affirmed.


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    The People ex rel. Tiffany & Co., App’lt, v. Frank Campbell et al., Resp’ts.

      (Court of Appeals,

      Filed December 11, 1894.)

      1. Taxes—Corpoeatiou—Exemption.
    The provision of chap. 193 of 1889, which amends § 3, chap. 542 of 1880, qualifies the exemption therein contained, and limits it to corporations whose corporate business is exclusively that of manufacturing.
    2. Same.
    The incidental powers, which a corporation possesses, are not those which are merely convenient or useful and not essential to its business.
    3. Same.
    The fact that the corporation is engaged in business outside of its corporate powers, does not deprive it of all the benefit of the exemption.
    4. Same.
    In such case, it subjects itself to taxation upon that portion of its capital so illegally used, but is entitled to exemption as to the residue.
    Appeal from order of the general term of the supreme court in the third judicial department, which dismissed a writ of certiorari to review a decision of the state comptroller holding the relator liable to taxation for a portion of its capital and affirming the decision of the comptroller.

      Charles H. Miller and Norton Chase, for app’lt; T. H. Hancock and John W. Hogan, for resp’ts.

      Affirming, 61 St. Rep. 811.

   Andrews, Ch. J.

This appeal is from an order of the general term dismissing a writ.of certiorari to review a decision of the state comptroller subjecting to taxation a portion of the relator’s capital employed in this state in the years 1889, 1890 and 1891.

The relator is a manufacturing corporation in this state, organized under the general law for the incorporation of manufacturing. companies, for the manufacture and sale of gold and silverware and other articles of ornament and use. Its capital, stated in the certificate, is $2,400,000, which by accretion now exceeds $3,000,-000. It lias a store for the sale of its products in the city of New York. It employs from six to eight hundred men in its manufacturing business in this state and about eighty per cent, of its capital. All of this capital, except á portion varying in different years from twelve to fifteen per cent., is invested in its manufacturing business. The portion not employed in that way, amounting on the average to about $300,000 a year, is employed in the purchase and sale of goods, principally of foreign manufacture, of the same general character as the goods manufactured by the relator, but of a cheaper description, which it cannot itself advantageously manufacture, but which are necessary in order to make its stock complete, and to meet the wants of customers. The portion of the relator’s capital not employed in this state, being about twenty per cent, thereof, is invested permanently in London and Paris, and a small part in New York.

The question presented relates to the rule of taxation as applied to the relator and the basis upon which the tax is to be computed, assuming that to any extent the capital of the relator is taxable.

The relator insists that, being a manufacturing corporation, it was exempted from taxation by § 3 of chap. 542 of the Laws of 1880, which exempted “ manufacturing corporations ' carrying on manufacture within this state,” and the further claim is made in behalf of the relator that the amendment of that section by chap. 193 of the Laws of 1889, which inserted the words “ wholly engaged in ” before the words “ carrying on manufacture,” contained in the act of 1880, was not intended to and did not affect or qualify the exemption given by the prior act, and that by that act a manufacturing corporation was absolutely exempt from taxation in whatever other business it might be engaged. The comptroller, in settling the tax, while expressing a doubt whether the relator’s business within this state was not wholly that of manufacture within the fair meaning of the act of 1889, nevertheless concluded that it was taxable on the portion of its capital employed in this state in the purchase or sale of goods manufactured by other parties, and upon this basis adjusted the tax. The attorney-general claims that the comptroller erred in limiting the tax to the portion of the relator’s capital employed in a business outside of the manufacture and sale of its own products, and that by uniting therewith the business of buying and selling other articles, although of the same general character, was not entitled to any exemption because not “ wholly engaged ” in carrying on manufacture within the state, which, it is insisted, is the condition of exemption of manufacturing corporations, imposed by the act of 1889.

We do not assent to the claim of the relator’s counsel that the words “ wholly engaged in,” contained in the amendment of 1889, do not apply to manufacturing corporations. The plain object of the exemption of manufacturing corporations, carrying on manufacturing within this state, from taxation, by the act of 1880, was the encouragement of production, and it was assumed that the employment o£ capital and labor in the business of manufacture here was a just ground for the exemption. The object of the amendment of 1889 was not to withdraw the protection given by the act of 1880, but to define more specifically than in the prior act, the purpose that the exemption should be confined to corporations whose corporate business was exclusively that of manufacture. Under the broad language of our statutes authorizing incorporations and the provisions of special charters, the corporate powers may be extended to embrace many objects dissimilar in character and not germane to each other. Tt was to avoid a construction which would enable parties to organize a corporation naming manufacture as one of its objects for the purpose of escaping taxation, while in fact that purpose might be a mere cover for other corporate enterprises embraced in the same certificate, not within the policy of the legislation exempting manufacturing corporations from taxation. The words in the amendment of 1889 were inserted to prevent this evasion of the statute.

It is claimed that the purchase and sale of goods not manufactured by the relator, merely to complete its stock, and limited to articles which it could not advantageously manufacture itself, was incidental and subsidiary to the exercise of its corporate power as a manufacturing company, and, therefore, within the power granted. It is well settled that a corporation possesses not only powers specifically granted in terms," but (as expressed in the Revised Statutes) such powers “ as shall be necessary to the exercise of the powers so enumerated and given." 1 Rev. St. 600, '§ 3. The unexpressed and incidental powers possessed by a corporation are not limited to such as are absolutely or indispensably necessary to enable it to exercise the powers specifically granted. Whatever incidental powers are reasonably necessary to enable it to perform its corporate functions are implied from the-powers affirmatively granted. Comstock, J., Curtis v. Leavitt, 15 N. Y. 64. But powers merely convenient or useful are not implied if they are not essential, having in view the nature and object of the incorporation. The power assumed by the relator in this case to supply from other sources goods which it could not itself profitably manufacture, was a convenient and useful one, and doubtless contributed to the success of its general business, but it cannot, we think, be said to be essential to its business as a manufacturing corporation. The power to sell its products, even if it had not, as in this case, been expressly included among the enumerated powers, would be necessarily implied in the charter of a manufacturing corporation. Without the power of sale the business of production could not be carried on. The power to sell is an indispensable adjunct to a manufacturing business. But the same considerations do not apply where a manufacturing corporation is also engaged in the purchase and sale of goods manufactured by other parties. This part of the relator’s business was not, we think, within its chartered powers.

The question, therefore, arises whether, by engaging in this-business, under the circumstances and for the reasons disclosed by the evidence, the relator, whose main and important business was the manufacture and sale of its own products, lost the benefit of the exemption given by the act of 1889, to manufacturing corporations within this state, “ wholly engaged in carrying on manufacture.” The corporate business of the relator was the manufacture of goods and the sale of its manufactured products. This is the clear construction of its certificate. It employed a small portion of its capital in doing a business not strictly authorized by its charter, viz., the buying and selling of goods manufactured by other persons. The state could have intervened to prevent this usurpation of power, if, in the opinion of the authorities, the public interests required it. The statute of 1889, in exempting from taxation manufacturing- corporations “ wholly engaged in carrying on manufacture ” within this state, had in view corporations whose corporate powers were confined to the exclusive business of manufacturing, and the limiting words were intended to distinguish between such corporations and corporations which embraced a wider scope of power, but which included the power to engage in the business of manufacture. These latter corporations were not exempted, unless, indeed, their actual business was confined to the exercise of this specific power. The statute was not aimed at and did not contemplate the exercise by a corporation of powers ultra vires. If a manufacturing corporation is engaged in business outside of its corporate powers, in connection with its manufacturing business, it does not cease to be “wholly engaged” in the business of manufacture ; that is to say, its only legal and authorized business was that of manufacture. It subjected itself to taxation upon that portion of its capital so used, but nevertheless it remained a corporation which, so far as it exercised its legal powers, was “wholly engaged” in manufacture, and, therefore, entitled to exemption as to its manufacturing business.

The conclusion reached by the comptroller worked exact justice.- It exempted the relator as a manufacturing corporation from taxation. It imposed a tax on its capital employed in outside and unauthorized transactions. The relator cannot be heard to complain of taxation to this extent, or that it was not capital taxable under the law of 1889. The apportionment of a tax under circumstances, in many respects, similar to this has been sustained by the courts of Pennsylvania. Com. v. Lackawanna Co., 129 Pa. St. 346; Com. v. Wm. Mann Co., 150 id. 64. The case is not free from difficulty. But it is to be borne in mind that very few corporations would be entitled to exemption if the exemption was lost by proof that the corporation had done some business not within its corporate powers. The rule we adopt maintains the policy of the statute, while it subjects all the property of the corporation, outside of its legitimate business, to taxation.

The order below should be affirmed.

All concur, except Bartlett, J., not voting.

Order affirmed.