author: Hardin, P. L. :

text:
    MORTIMER E. SERAT, Respondent, v. GABRIEL L. SMITH and Another, Appellants.

      A written agreement, where its language is olear and not technical, is to he interpreted Tyy the cov/rt — effect of receiving a statement and draft and of indorsing the latter — a receipt is only prima facie evidence.

    ■Wlieve a written agreement between a clieDt and his attorneys, as to the charges to be made by the latter for their services in an action, contains no technical or obscure phrases or latent ambiguities rendering its meaning doubtful, the office of interpretation belongs to the court alone.
    It is error for the court to submit to the jury the question whether the agreement related only to the action described in it, or whether it also covered certain other services rendered by said attorneys in another action begun by them at the client’s request.
    The receipt of a statement of account and of a draft for the balance appearing thereby, and the indorsement of the draft, are not conclusive evidence of an acceptance of the statement and an assent thereto by the party receiving it.
    A receipt is only prima facie evidence of the facts slated therein, and maybe controverted or explained by parol evidence.
    Appeal by the defendants, Gabriel L. Smith and Andrew J. Robertson, from a judgment of the Chemung County Court entered in the clerk’s office of said county on the 21st day of December, 1888, in favor of the plaintiff, and from an order entered in said clerk’s office on the 18th day of December, 1888, denying their motion for a new trial, after a trial in the Chemung County Court, before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $110.30.
    The plaintiff’s complaint alleges that on the 12th day of July, 1883, he made an agreement with the defendants, who were jiracticing lawyers in the city of Elmira, “ whereby it was contemplated and agreed that these defendants should receive and retain for themselves, as and for full payment and compensation by plaintiff, for their costs and disbursements, and all claims for services performed and to be performed, and costs earned and disbursements incurred, then past and prospective, in relation to or arising out of a claim of this plaintiff, against the Utica, Ithaca & Elmira Railroad Company, one-third of the amount collected as damages in behalf of the plaintiff against the said railroad compauy, and should pay to plaintiff the remaining two-thirds of such amount as soon as the same was received by defendants, together with such interest thereon as might be received by defendants when said damages might be paid to them by said railroad company.”
    The complaint also alleged that on the 10th day of May, 1886, “ after these defendants had performed all the services contemplated by said agreement and relating to the plaintiff’s said claim against said railroad company, the defendants received, under said agreement, from said railroad company, the sum of $1,516.50, the amount of the damages obtained by plaintiff against said company, and also the sum ■of $237.78, the interest on said $1,516.50, from September 29th, 1883, the date when said sum was awarded as damages to plaintiff against said company, to May 10th, 1886, the date when said damages and interest was paid, amounting in all to the sum of $1’,754.28.” The complaint then alleged that plaintiff had demanded paymeut of the sum of $1,169.52, “ but defendants failed and refused to pay the same ■or any part thereof to plaintiff until March 21st, 1887, when defendants paid to plaintiff, to apply thereon, the sum of $1,054.00, the amount then due and payable from defendants to plaintiffs being $1,230.09 * * * and there remained due to plaintiff and unpaid, after deducting said sum of $1,054.00 paid to apply, the sum of $176.09.”
    The answer of the defendants was a denial of the allegations of the complaint, and an averment of “ settlement and satisfaction and payment, and a counter-claim for services to the value of $250.00; it also demanded judgment for $250.”
    On page 490 of the defendants’ register was the following agreement:

      “SUPREME COURT — Chemung County.
    MORTIMER E. SERAT

      ag’st

    THE UTICA ITHACA, & ELMIRA RAILROAD COMPANY.
    “Smith & Robertson:
    “ The agreement between plff. and his attys. as to pay for their services is as follows: If the suit is tried and plff. is beaten, they are to have nothing, and if plff. succeeds on trial or by settlement they are to have one-third the amount obtained by plff., and all the costs recovered or received of deft. This is the agreement made in this action.
    “July 12th, 1883. “M. E. SERAT.
    “Smith & Robertson,

      “Attys.”

    At that time the ^plaintiff claimed that the railroad company had forcibly ousted him from a tressel work which he claimed to own, and the action was brought to recover its value, which action resulted in a judgment on the 29th of September, 1883, for $1,516.50 damages. The'company appealed from this judgment to the General Term.
    Pending that action, and on or about the 3d of October, 1883, the defendants ¡irepared papers in an action of sequestration, and, at Delhi, obtained an order to show cause, returnable at the Madison Special Term, requiring the defendant to show cause why a receiver should not be appointed, and upon the court’s attention being called to the fact that a bond had been given on appeal, no order was made. The appeal was heard in the General Term and the judgment affirmed. The railroad company appealed to the Court of Ajipeals, where the judgment was affirmed, and the remittitur was entered in the Chemung county clerk’s office on the 24th day of April, 1886. On the 10th day of May, 1886, the defendants executed and delivered to the railroad company a receipt for the amount of money then received, to wit, $2,108.19. In the statement to which the receipt is attached it appears that the amount of the first judgment, September 9,1883, was $1,598.08, and interest thereon to May 9,1886, at six per cent, svas $250.63. Other items in the statement appear to be for costs in the General Term and in the Court of Appeals. On February 26, 1887, the plaintiff, by telegram to the defendants, aslced: “ITas suit been decided?” On February 28, 1887, a telegram was sent to plaintiff, at Lexington, Mo., to the. effect that one of the members of the firm was absent from home- and that he would write on his return. On March 11, 1887, from Cherokee, Kan., the plaintiff sent a letter to one of the defendants, making inquiry in respect to the suit, in which he says: “ If the suit is undecided, please so advise.” On March 19, 1887, a letter was addressed to the plaintiff by one of the defendants, which contained the following language: “ I have just, this week returned from Albany and the Court of Appeals, and am now happy to-announce to you that I have succeeded in collecting your money and will send it to you just as soon as I can get into the bank to get a draft. It is now Saturday afternoon, and I cannot do so until Monday morning. I have expected for months to be able to send you your money every mail, and therefore have neglected writing-until to-day, every day expecting to be able to send you a draft to-morrow, but it has been prevented until now. And now that I hav e got something to write you, I do so. This explains why I have not written you sooner, at least, it is the only explanation I have to give.”'
    On the 21st of March, 1887, one of the defendants sent to plaintiff by mail a letter addressed to him at Cherokee, Kansas, with a draft for $1,054, which draft was to the order of one of the attorneys. The letter stated the draft to be “in full of balance collection against the Utica, Ithaca and Elmira R'. R. Co.” The letter contained the following : “ The statement is as follows:
    “ Amount of judgment............................$1, 516 50
    “ Deduct one-third................................ 505 50'
    “ Two-tliirds......-..................„........$1, Oil 00
    “ Charge for sequestration action.................... 100 00-
    “Balance........................................ $91! 00
    “ Interest........................................ 143 00
    “ Draft for total.............................. $1, 054 00

      “ I liave had more trouble getting this than any money I think I ever got. You remember that I had to bring a second action for you outside of the one in which I made the collection, for the purpose of sequestrating the road, which compelled them to give security, and that this action came on at Morrisville before Judge Murray, and for this I charge you $100. This was entirely outside of this action and was really the proceeding that caused our success. I had to pay out a very large part of this charge for •expenses in getting papers served, going to Morrisville, Madison ■county, etc., in the case. I have expected all this year, from week to week to be able to send you the money, and in such expectation neglected writing you. I was before the Court of Appeals in Albany last week.”
    The plaintiff testified that the letters of the nineteenth and twenty-first of March were the only letters that he received “ after the decision of the Court of Appeals up to the time of receiving them.” The plaintiff testified that after he received the letter of March 21st and on the 21st of April, 1887, at Parsons, Kansas, he wrote to the defendants a letter containing a statement of the amount of the original judgment, and the interest thereon, and claiming therein that there was due him $1,230.20, less the remittance of -$1,054, leaving the balance due the plaintiff of $176.20, and closing his communication with the following words: “ I have drawn on you at sight for the above balance, $176.20. Please protect and oblige.” The draft'was produced in evidence having been returned to the plaintiff. “ It is conceded that the payment of this draft was refused.” It appears by the evidence that the draft of March 21, 1887, for $1,054, was ail ordinary bank draft issued by the Chemung Canal Bank, Elmira, payable to the order of G. L. Smith, and bore upon it an indorsement as follows:
    “ Pay to the order of M. E. Serat in full for balance due on collection of judgment against tlie Utica, Ithaca and Elmira Railroad Co., in his favor.
    « Q. L. SMITH.”
    And under the indorsement and signature, as already stated, was the signature of the plaintiff, to wit., “ M. E. Serat.”
    In the letter of April fifth, which the plaintiff sent to the defendants, he stated: “You charge me $100 more than you agreed to conduct the suit for; second, you do not remit all the interest I am entitled to. With the information now at hand, I cannot say exactly what the interest should be; but $143 does not cover it. Please remit the $100 above and balance of interest at once, and oblige.” On the ninth of April the defendants wrote the plaintiff a letter, addressed to him at Parsons, Kansas, in which they say, viz.: “ The statement we sent you is entirely correct. We made an agreement as to the one case, and after that agreement was made another action was commenced for you, in which we paid out about $40 in cash, and which action was the one that compelled them to give security on their apjieal and so enable us to collect in the end. We charged you for the same $100, which is a very reasonable charge. The interest, as we figure it, is correct.”
    The complaint in the second action was verified by the plaintiff on the 3d day of October, 1883, audit stated that the execution on the judgment liad been returned by tlie sheriff of Chemung county “ wholly unsatisfied, and that said judgment is wholly unpaid, and the said plaintiff is unable in any way to obtain satisfaction thereof.” Plaintiff verified an affidavit which was used to obtain the order to show cause on the 9th day of October, 1883. The order to show cause was signed October K>, 1883, and was returnable at a Special Term in Mbrrisville on the 16th d'av of October, 1883.
    One of the defendants testifies that the plaintiff directed the commencement of the sequestration action; and, also, that “ there was nothing said between myself and him with reference to the expense of it, or as to whether or no it would be included in tlie agreement that I had with him in the other action. I did not tell him at that time what the probable expense of the other action would be,, or what the charge would he. There never .was any statement made by me in the conversation with him in which I said that, notwithstanding’ the commencement of this action of sequestration, so-called, that the only expense to him would be the printing of points for the Court of Appeals.”
    Tbe plaintiff testifies that on one occasion lie obtained a copy of tlie agreement from one of the defendants, “ and I asked him if that would cover all the costs that I would be liable for in the action. I didn’t know but there might be something outside that T did not understand; I asked him if that would cover all, and he told me that that would cover all the expenses that I would be liable for with the possible exception of printing something- that had to-go to the Court of Appeals. I don’t know what; some argument or something that had to go to the Court of Appeals. Q. Points ? A. Yes, sir, but beyond that 1 was responsible for n othing but the one-third. This was after this sequestration action had been commenced.”
    One of the defendants testifies that, on the 4th of May, 1886, lie-addressed a letter to the plaintiff: to Lexington, Mo., in which he stated: “We have beaten them in Court Appeals, and hope to get our money soon, but they may keep us out of it a year or two by compelling us to sue on the bond, but I hope, not. Let me hear from you so I may know your address in case the money comes;” and one of the defendants testifies that'he did not know prior to the 19th of March, 1887, that the plaintiff “ had changed his residence from Lexington, Mo., at least I heard that he had changed it, but I did not know where.”
    Reynolds, Stanohfield cfi Gollin, for the appellants.

      James A. Douglas, for the respondent.
   Hardin, P. L. :

When the agreement of July 12, 1883, was entered into by the-parties thereto, neither of them contemplated or foresaw the possibility or probability of any other suit being necessary than the one which was then brought against the railroad company for the purpose of establishing the plaintiff’s cause of action against the company. Neither the terms of the agreement nor the surrounding-circumstances indicate that either of the parties to the agreement supposed or expected there would be any difficulty in collecting the claim if judgment was recovered therefor. The exact language of the agreement relates to the action commenced on the 12th day of July, 1883. The words “if the suit is tried” and the words “this is the agreement made in this action,” indicate an intent and purpose on the part of the contracting parties to deal with the action then instituted; and, as already stated, there are no words in the agree"ment referring to any other action, and the words used are restrictive to the action then instituted. We think the parties in reducing the contract to writing “ defined their meaning by plain and unequivocal language,” and that it was “ the duty of the court, "and not of the-jury, to determine and declare what that is.” (Dwight v. Germania, Life Ins. Co., 103 N. Y., 342.)

In Brady v. Cassidy (104 N. Y., 155) the rule which is applicable here is laid down by the Court of Appeals in the following-language : “ The rule is well settled that when the terms and language of & contract are ascertained, in the absence of technical phrases, the meaning of which is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone.” In the case in hand we are unable to discover any technical phrases in the agreement entered into by the parties, the meaning of which is obscure, and we discover no latent ambiguities- or anything in the phraseology used by the parties “rendering the subject-matter of the contract uncertain and doubtful.” We, therefore, think the learned trial judge fell into an error when he refused, as a matter of law, to construe the agreement and when he submitted to the jury the question as to whether or not it embraced by its terms the services rendered in the second action commenced by the defendants at the request of the plaintiff. Exceptions were taken to the charge, and the refusals to charge, clearly presenting the questions here. It is insisted, in behalf of the respondent, that there was some evidence of an oral understanding between the plaintiff and the defendants that there should be no charge for services in the second action. Plaintiff gave some evidence tending to support such position; however, the defendants’ testimony contradicts that of the plaintiff. Besides, it may be suggested that after a recovery of the judgment the defendants, in virtue of the agreement, having a lien or equitable ownership of one-third of the judgment, were to that extent interested in the proceedings to realize the moneys upon it, and that circumstance may tend to support the theory of the plaintiff, that the defendants-undertook the subsequent proceedings under a fresh arrangement that there should be no charge for their services in the efforts to collect the judgment. And in that respect there was a question of fact for the jury to determine. If we could see that the verdict rested upon that issue, then the error which we have already pointed out might be‘overlooked, but it is not apparent that the refusal to-rule upon the agreement as a matter of law, and the submission of its interpretation to the jury as a question of -fact, may not have influenced or produced the verdict. The services rendered in the second action not having been embraced in the language of the agreement of July twelfth, compensation therefor was not covered by the sum which the defendants were entitled to receive under that agreement. If there was any agreement between the parties that the services should not be compensated for, if they were not -embraced in the agreement, then the defendants were authorized to make a reasonable charge therefor, and having charged $100 therefor, the question upon the trial was for the jury to determine whether that should be the limit of their right to compensation, notwithstanding the evidence given by several professional gentlemen that the services were worth a much larger sum. However, it is quite apparent that the jury excused the defendants from paying the interest on the money while it was withheld by the defendants upon the supposition that the defendants were not aware of the residence of the plaintiff from the time they received the money on the 10th of May, 188G, down to the time when they transmitted it to him in March, 188T; and it seems to be equally apparent that the jury came to the conclusion that the services in the second action were covered by the agreement of July twelfth, and, therefore, they awarded the plaintiff $100, withheld by the defendants, and the interest thereon.

2d. ¥e are of the opinion that no error was committed upon the trial in submitting the question to the jury as to whether the statement made by the defendants in March," 1887, and the draft of $1,054,' and the indorsement thereon were equivalent to a receipt in full for the balance due on the collection of judgment against the railroad company; and upon all the evidence before the court we think no error was committed in refusing to charge that the plaintiff was bound by the indorsement on the draft transmitted to him by the defendants in March, 1887.

In Ryan v. Ward (48 N. Y., 207), it was said: “ It has long been settled in this State that a receipt furnishes mere prima facia evidence of the facts stated therein, and that it may be controverted or explained by parol evidence. * * * This grows out of the fact that a receipt is not a contract. It is a mere declaration or admission in writing. * * * A receipt in full contains a declaration that a certain sum has been paid in full of all claims of a certain kind, or of all demands. Neither kind of receipt embodies any contract. Both furnish only prima facie evidence, and are valuable only as such. Both are equally open to • explanation or contradiction.” The last case is cited approvingly in McKenzie v. Harrison (120 N. Y., 265).

It is insisted, in behalf of the respondent, that the jury' were “ justified in finding that the defendants wrongfully withheld the plaintiff’s money, with the intention of using the same so long as they could do so, and that their pretense, that they did not send it to him, for the reason that they did not know his address, was only thought of when they were brought into a court of justice, to respond in damages for their unprofessional conduct.” When this cause shall again be tried before the jury the respondent can assert that position. We find little occasion to express any controlling views upon the subject. Apparently the defendants received information as early as the twenty-fourth of April that the Court of Appeals had affirmed the judgment, as on that day they served the attorneys of the railroad with notice that the Court of Appeals had affirmed the judgment; and, on the 4th of May, 1886, served their bill of costs with a statement of the amount that was claimed, and on the 10th -day of May, ,1886, delivered their receipt for the money received of the railroad company, to wit, $2,108.19, which one of the defendants deposited in the bank to his own credit. Whether the defendants exercised good faith under the circumstances, and whether they should be relieved from the payment of interest from the 10th of May, 1886, until March, 188V, will be appropriate questions for the jury to consider. And bearing upon those questions the letter of April 28, 1886, may be considered. In their letter to the plaintiff one of the defendants states: “ Your case has been argued in the Court of Appeals. When it will be decided nobody can tell, only the court, and they won’t tell us. Will advise you when I learn.” It may be observed that we find this letter quoted in the points of the respondent, and the first sentence thereof is made to read as follows: “ Your case had been argued in the Court of Appeals,” which is the correct version of the letter will, undoubtedly, clearly appear on the trial.

The judgment must be reversed aud a new trial ordered in the '.County Court of Chemung county, with costs to abide the event.

.Martin and Merwin, JJ., concurred.

Judgment reversed and a new trial ordered in the County Court •of Chemung county, with costs to abide the event.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    CHARLES E. CROUSE and Another, Respondents, v. FREDERICK REICHERT, Appellant.

      .Judgment by default— twenty days must elapse after a complaint has been demanded and served — the service of a complaint as a part of attachment papers, not sufficient.

    An action was begun on December thirteenth by the service oí a summons and notice under section 419 of the Code of Civil Procedure. An attachment was granted upon the complaint and certain affidavits on December sixteenth, and these papers were served upon that day. On December thirty-first the defendant served a notice of appearance and demanded a copy of the complaint.
    On January sixth the plaintiff entered judgment.

      Held, that the judgment was irregular.
    ‘That it should not have been entered until twenty days after the demand for a copy of the complaint had been complied with.,,
    ‘That the service of the complaint as a part of the attachment papers was not such a service of it as the defendant was entitled to under the Code.
    Appeal by tbe defendant Frederick Reichert from an order, entered in the office of the clerk of Onondaga county on the 26th day of January, 1891, denying a motion to vacate a judgment in favor of the plaintiffs and against the defendant.

      <Hom,er Weston, for the appellant.

      J. E. Newall, for the respondents.
   Per Curiam :

This was an appeal from an order denying a motion to set aside and vacate the judgment entered herein July 6, 1891. The summons and notice provided for by section 419 of the Code of Civil Procedure were served on December 18, 1890. On tbe 16tb day of December, 1890, an attachment was granted on the complaint and certain affidavits furnished by the plaintiffs, and it was served on that day. On December 31, 1890, the defendant served a notice of appearance and demanded a copy of the complaint, as provided for by section 479. No copy of the complaint was served in pursuance of such demand. On January 6, 1891, twenty days after the service of the attachment papers, which included a copy of the complaint, judgment was entered. The only question involved on this appeal is whether the service of the attachment papers, which included a copy of the complaint, was a sufficient service of the complaint to permit the plaintiffs to enter judgment in disregard of the defendant’s demand for a copy thereof-.

In Sweet v. Sanderson Brothers Steel Co. (6 Civ. Pro. Rep, 69), Merwin, J., held, that where a complaint was served two days after the summons, and before the defendant appeared, the plaintiff acquired no rights thereunder, and that the service should be set aside. In Paine v. McCarthy (1 Hun, 78), the summons was served on June seventeenth, the complaint was served June nineteenth, the defendant served no notice of appearance, judgment was entered July eighth, and it was held regular, thus in effect holding that the defendant could have no advantage from the service of the complaint at a later date. The same doctrine seems to have been held in Van Pelt v. Boyer (7 Howard, 325). It would seem that the service of the complaint in this action was not sufficient, as it was not served with the summons nor after the defendant had served his demand. Moreover, it was not served as a complaint in the case, but only as a part of the papers on which the attachment was issued ; hence we are of the opinion that the judgment was irregular and should have been set aside.

Present —■ Martin, P. J., and Merwin, J.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


author: Hardin, P. J. : Martin, J.

text:
    SYRACUSE MOLDING COMPANY, Respondent, v. FRED D. SQUIRES, Appellant.

      Justice's Gourt — -evidence, of the authority of the plaintiff's attorney — of the residence of the parties — of the service of the summons and verified complaint — Laws of 1881, chap. 414, sea. 1.
    In an action in a Justice’s Cour,t the authority oí the plaintiffs attorney to appear is sufficiently shown by a recital in the justice’s return, that such attorney was sworn as to his authority to appear.
    The venue of the summons issued from a Justice’s Court was the town of Cazenovia, and the return showed that the summons and complaint were personally served on the defendant at the town of Oazenovia.

      Held, that it sufficiently appeared that the justice had jurisdiction, even if the defendant had been a non-resident, and that the objection that it did not appear that either party was a resident of the county was, upon the face of the papers, untenable.
    It is essential under section 1, chapter 414, Laws of 1881, relative to suits in Jus_ ' tices’ Courts, commenced by the service of a summons and verified complaint, that the return should show that copies of the summons and complaint were delivered to, and left with, the person served, and a return by the person making the service, which does not state that such copies were left with the defendant, does not confer jurisdiction upon the court. (Martin, J., dissenting upon the last point.
    Appeal by the defendant Fred D. Squires from a judgment of the Madison County Court, entered in the cleric’s office of said county on the 1st day of January, 1891, affirming a judgment for the plaintiff rendered by a justice of the peace.

      Cameron de Kiley, for the appellant.

      Edward S. More, for the respondent.
   Hardin, P. J. :

The appellant challenges the validity of the judgment in this case on the grounds:

1. That the authority of the plaintiffs attorney to appear for it was not proved, as required by section 2890 of the Code of Civil Procedure.

2. That the justice acquired no jurisdiction of the parties.

3. That the complaint was not properly verified as required by chapter 414, Laws 1881, and hence that the justice was not authorized to render the judgment appealed from without further proof, and,

4. That the return of the constable was insufficient to justify the justice in entering judgment against the defendant upon the proof given.

The appellant contends that there was not sufficient proof of the authority of Edward S. More to appear as attorney for the plaintiff in the Justice’s Court. The return of the justice shows that “E. S. More appeared and answered for the plaintiff, and was by me (the justice) sworn as to his authority to appear.” We think this was sufficient to show that section 2890 of the Code of Civil Procedure was complied with.

It is also claimed that it did not appear that the justice had jurisdiction of the parties, in that the return did not show that either of the parties was a resident of Madison county. The constable’s return shows that the summons and complaint were served on the defendant at the town of Cazenovia, which was the town in which the justice presumably resided, as the venue of the summons was Madison county, town of Cazenovia. Therefore, if the defendant was a non-resident of the county, the justice acquired jurisdiction under subdivision 3 of section 2869 of the Code of Civil Procedure, which provides that an action against a non-resident of the county may be brought before a justice of the town in which he is at the time of the commencement of the action. We think, as there was no proof to the contrary, the return sufficiently shows that' the justice had jurisdiction of the parties.

Nor do we think the defendant’s claim that the complaint was not properly verified can be sustained. Chapter 414, Laws 1881, provides that the complaint shall be subscribed by the plaintiff or his agent, and shall be verified in the manner and as provided by section 526 of the Code of Civil Procedure. It would seem that it was the intent of this statute that the complaint might be verified by the person subscribing it; if subscribed by the plaintiff, that it might be verified by him; if subscribed by his agent, that it might be verified by such agent. When we refer to section 526 we also find that that section contemplates a verification by a person other than a plaintiff. But the appellant contends that it must be verified as required by section 525 of the Code. That section provides that the verification must be by the affidavit of the party, except:

“(1.) Where the party isa domestic corporation the verification must be by an officer thereof ; (2.) Where the people of the State •or a public officer in their behalf, is the party, the verification may be made by any person acquainted with the facts ; (3.) Where the party is a foreign corporation, or where the party is not within the •county where the attorney resides, * * * or where the action •or defense is founded upon a written instrument for the payment of money only which is in the possession of the agent or the attorney, •or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney, in either case the verification- may be made by the agent of or the attorney for the party.” In this case the action was founded upon a written instrument for the payment of money only which wns in the possession of the plaintiffs agent who made the verification. We think it was sufficient.

The only remaining question is, whether the constable’s return was sufficient to give the justice jurisdiction to enter judgment in this action upon the proof given. The only proof in the case was as to the amount of interest due upon the draft in - suit. Hence the question arises whether the return of the constable showed a sufficient compliance with the statute of 1881 to authorize the entry-of the judgment appealed from without further evidence. That ¡statute provides that the summons and complaint shall be attached, and shall be served upon the defendant by delivering to and leaving with him personally true copies thereof. It also provides that the official certificate of the constable making such service shall be sufficient evidence thereof. The certificate of the constable was to the effect that the within summons and complaint were personally served on the defendant on the 11th day of July, 1890, at the town of Cazenovia by delivering to him copies thereof.

The precise question here is whether the jurisdiction of the justice to render a judgment without further proof failed because the officer omitted to state in his return that he left with the defendant the copies of the summons and complaint that he delivered to him. ’This question was somewhat considered by this court in McMullin v. Mackey (6 N. Y. Supp., 885). In the opinion delivered by Mbrwin, J., in that case, it was said that a similar return was not a sufficient compliance with the statute, as it did not show that the copies were left with the defendant. While this portion of the opinion was not concurred in by the other members of the court, a majority of the court are of the opinion that the doctrine of that case, upon this question, should be upheld, and that the constable’s return was insufficient to justify the justice in rendering a judgment in the case at bar without further proof. It, therefore, follows that the judgment should be reversed, with costs.

Merwin, J., concurred.

Martin, J.

(dissenting):

I cannot concur in the conclusion reached by a majority of the court that the judgment should be reversed on the ground that the constable’s return was insufficient to justify the justice in rendering the judgment appealed from without further proof. It is true that, in the case of McMullin v. Mackey (6 N. Y. Supp., 885), Merwin, J., said that a similar return was insufficient. In that case, the case of Wilkinson v. Bayley (71 Wis., 131) was cited and much relied upon as sustaining that doctrine. An examination of that case at first seems to indicate that it holds the doctrine contended for; but when the cases relied upon by the judge who wrote the opinion in the Wilkinson Case are examined, it appeal’s that the rule or statute regulating the service in those cases was unlike the statute of 1.881, as the rule or statute there under consideration provided that where the service should be made by a person other than the sheriff it should be necessary for such person to state in his affidavit of service, inter alia, whether he left with the defendant a copy as well as delmered it to him. (Matteson v. Smith, 37 Wis., 333.) The statute referred to in the Wilki/nson Case was similar to, if not identical with, Rule 41 of the Circuit Court, upon which the decision in the Matteson Case was based, and required the affidavit to state whether a copy was left with the defendant or not. It was as follows : “ Proof of the service of the summons and of the complaint or notice, if any, accompanying the same, shall be as follows: 1. If served by the sheriff, his certificate thereof showing place, time and manner of service. 2. If by any other person, his affidavit thereof showing place, time and manner of service; that he knew’ the person served to be the defendant mentioned in the summons, emd left with as well as delivered to him a copy.”

Tims it will be seen that, in the cases cited, the statute or rule required that the affidavits should state whether or not a copy was left with the party served, and hence they are clearly distinguishable from the case at bar. The statute of 1881 provides the manner of service, which is by delivering to and leaving with the defendant copies. It does not direct as to the form of the constable’s return, nor that it shall show that the officer serving it left copies with the defendant as well as delivered them to him. 1 do not regard the ’Wisconsin cases as binding authorities upon this question.

It seems to me that the return of the constable that he delivered the copies to the defendant included leaving them with him. A delivery must be regarded as a full surrender of the possession of the thing to the person to whom it is delivered, and this could not be accomplished without complying with this statute by leaving the summons and complaint with him. I am of the opinion that the return was sufficient; that the certificate of the fact that he delivered them to the defendant clearly implied that they were left with him; and that the judgment should be affirmed. While the opinion of Merwin, J., in the MoMullm Case,is adverse to this conclusion, it will be observed that it was not concurred in by the other members of -the court; Hardin, P. J., concurred only in the result, while Martin, J., concurred only upon, another distinct ground, which was specified.

I think the judgment should be affirmed, with costs.

Judgment of County Court of Madison county and of the Justice’s Court reversed, with costs.


author:
L ANDON, J.:
      Mayham, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EDISON ELECTRIC ILLUMINATING COMPANY OF NEW YORK, Relator, v. EDWARD WEMPLE, Comptroller of the State of New York, Defendant.

      Taxation — electric-lighting companies — electricity is not a manufacture — electric companies wet'e not exempt from taxation upon their business or franchise prior to the passage of chapter 358 of 1889 — method of computing penalties under section 2, chapter 361 of 1881 — chap. 542 of 1880 — appeal, under section 1, chapter 361 of 1881, how limited.

    An electric-lighting corporation was incorporated in 1880, under chapter 37, Laws of 1848, relating to the formation of gas-light companies, which companies were, by chapter 512, Laws of 1879, authorized to “use electricity instead of gas.” The corporation in question never produced anything but electricity. The comptroller of the State of New York settled an account against said corporation for taxes in the years from 1881 to 1885, inclusive, upon its “franchise or business,” alleged to he due the State of New York, under chapter 542, Laws of 1880, as amended by chapter 361, Laws of 1881, and other acts.
    In a proceeding brought by said company to revise and resettle said account, upon the ground that it was a manufacturing corporation, and as such was exempt from said tax:

      Held, that electricity exists in nature, is collected or gathered, and is not manufactured, and that said company was not a manufacturing corporation.
    .Section 3 of chapter 361, Laws of 1881, imposed the tax in question upon “every corporation, •* * * except manufacturing corporations; ” further providing that such “exception shall not be taken to include gas companies.” Chapter 358, Laws of 1889, amended said section 3 by excluding from the exemption “electric or steam heating, lighting and power companies.”

      Held, that the said amendment of 1889 was not a legislative declaration that electric companies were previously within the exemption.
    That the circumstances under which such an amendment is enacted are to be considered in its construction, and these may be such as to make the amendment declaratory, not of a change in the law, but of the legislative opinion as to what its proper construction should have been.
    That although a part of the, relator’s capital stock was invested in patent-rights,, yet as the tax was, by the statute, declared to be one upon the “corporate franchise or business,” such an investment did not afOect it, and no deduction should for that reason be made from the tax.
    Section 2 of chapter 361 of the Laws of 1881 provides that if a company is in default in making a proper report to the comptroller, and in paying the tax, the comptroller shall add ten per cent for each and every year for which such report was not furnished, or for which said tax was not paid.

      Held, that this provision did not mean that ten per cent should be added to the tax for every year that the tax was in default, but that ten per cent should be added to every year’s tax that was in default. (Mayiiam, J., dissenting upon this point.)

      Semble, that the appeal given by section 1 of chapter 361 of 1881 is confined to-those cases in which the company is dissatisfied with the account, as settled by the comptroller where he is not satisfied with the valuations returned to him by the company.
    Where the comptroller entertains and denies an application for a readjustment of the account a certiorari is proper.
    Hearing upon the return to a writ of certiorari granted upon the petition of the relator, the Edison Electric Illuminating Company of New York, against the respondent, Edward Wemple, Comptroller of the State of New York, to review his proceedings in levying and assessing certain taxes upon the franchise and business of the relator, under chapter 542 of the Laws of 1880, as-amended by chapter 361, Laws of 1881, and by other acts.
    The relator was incorporated in December, 1880, under chapter 37, Laws of 1848, entitled “An act to authorize the formation of gas-light companies.” Chapter 512, Laws of 1879, authorized companies incorporated under said act of 1848 to “ use electricity instead of gas,” and to adapt their plant and business accordingly. The relator has always used electricity, and has not produced gas-light. Its sole business is and has been the production and marketing of light by means of electricity.
    The full amount of the capital stock of the relator for the years-1881 to 1885, inclusive, was $1,000,000, all of which was not issued and a portion whereof was issued for patent-rights. .The comptroller in February, 1890, made an appraisement of the capital stock for each of the five years from 1881 to 1885, inclusive, making no deduction for the amount thereof issued for patent-rights, and he stated and settled an account against it for the taxes due the State-upon its franchise and business under chapter 542, Laws of 1880, and chapter 361, Laws of 1881, and the acts amendatory thereof, amounting, with the penalties added, to the aggregate of $5,090.45. This sum the relator paid, and subsequently applied to the comptroller under section 19 of the act of 1880, as added thereto by chapter 463, Laws of 1889, to revise and resettle the same upon the ground that it was exemp.t therefrom, because it was a manufacturing-corporation and because a part of its capital was invested in patent-rights, and read affidavits to support its claim for exemption. Affidavits were read in opposition. November 26, 1890, the comptroller made an order denying the application, and thereafter this writ of certiorari was issued, pursuant to section 20 of the act of 1880, as added thereto by said chapter 463, Laws of 1889.

      I. II. Maynard, for the Comptroller.

      S. B. Eaton and E. II. lewis, for the relator.
   L ANDON, J.:

We held in People ex rel. American Contracting and Dredging Company v. Wemple (60 Hun, 225) that the practice in that ease, which is substantially the same as in this, was authorized, and brought up for review both the law and the facts upon which the relator’s claim of erroneous or illegal taxation, in whole or in part, was based. We, therefore, pass to the consideration of this case upon its merits.

The relator presents two objections to the imposition of the tax in question :

Eirst. That it is a manufacturing company, and is, therefore, by the terms of the statute, exempt from the tax.

Second. That that portion of the capital stock of the relator invested in patent-rights was not liable to any taxation by the State. It also claims that the cumulation of penalties is erroneous.

Whether the relator was incorporated under the gas companies act, or under the comprehensive industrial act of 1848 (chap. 40), with, its many amendments and additions, usually called the manufacturing act, we do not deem material. In either case no question is made as to its right to obtain electricity and use and supply electrical currents for illuminating purposes. It is an electric-lighting company. Whether such a company is a manufacturing company seems to depend upon the question whether electricity is manufactured by the relator, or' whether it is already in existence, and is .simply collected or gathered by the relator and utilized. The processes adopted by the relator are stated in the case, and we have the differing opinions of learned experts laid before us. As a scientific question it would seem to be still in the debatable stage. Something also seems to depend upon the definition of terms. We cannot repose with much confidence upon the conclusion of the learned comptroller. Following our impressions, however crudely formed they may be, wo conclude that electricity exists in a state of nature, and that the relator collects or gathers it and does not manufacture it. We refrain from any exposition of the premises upon which this conclusion is based. If this conclusion is true, the relator is not a manufacturing corporation, and, therefore, not within the exemption of the statute.

The relator, however, contends that it is manifest from the legislation upon the subject that electric-light companies were exempt from the franchise tax until the passage of chapter 353, Laws of 1889, and, therefore, exempt during the years here in question. Section 3 of chapter 361, Laws of 1881, provided that “Every corporation * * * except manufacturing corporations carrying on manufacture within this State, which exception shall iiot be taken to include gas companies or trust companies, shall be subject to and pay a tax, as a tax upon its corporate franchise or business, into the treasury of the State annually,” etc. Chapter 353, Laws of 1889, amended the section by excluding from the exemption “ electric or steam heating, lighting and power companies.” The relator contends that that amendment is a legislative declaration of opinion tliat electric companies were previously within the exemption. (People v. Knickerbocker Ice Co., 99 N. Y., 181, and People v. N. Y. Floating Dry Dock Co., 92 id., 482, are cited.) In the first case the ice company sought exemption from the franchise tax, alleging that it was a manufacturing corporation. It collected and marketed naturally formed ice. The court held that it was not a manufacturing company. It was incorporated under the so-called manufacturing act (chap. 40, Laws of 1848), as the act was supplemented by chapter 301. Laws of 1855, extending its provisions to companies formed for collecting, storing, preserving and vending ice. The court held that the supplementary act indicated the legislative opinion that such ice business was not embraced within the terms of the original act. The conclusion seems, under the circumstances, to be just. The Dry Dock Case presented similar features and a similar ruling was made.

So it might be assumed that the enlargement of the gas companies act, so as to permit such companies to use electricity, implied that before the enlarging act the companies could not use electricity. But the addition of electric companies to the non-exempt companies may have been either to enlarge the non-exempt list, or to settle an unwarranted claim to exemption raised by the electric companies. If the legislature regarded these companies as non-manufacturing, then the amendment of 1889 should be construed as setting the contrary claim at rest.

The case of People ex rel. Westchester Fire Insurance Company v. Davenport (91 N. Y., 574, 591), holds that the circumstances under which an amendment is enacted are to be regarded in construing its effect; and if the circumstances imply a repudiation' by the legislature of the construction sought by interested parties to be placed upon the original act, the amendment instead of being declaratory of a change in the law is to be regarded as the legislative opinion of its proper construction. Applying this rule we see that lighting by electricity is more recent than lighting by gas; that the practical result is much the same; that the propriety of imposing a tax upon an electric-lighting company is not obviously distinguishable from the propriety of imposing it upon a gas company ; that one company may perform either or both kinds of service; that the gas companies were placed in the list of non-exempts because the court held that the companies which manufactured illuminating gas were manufacturing companies (Nassau Gas-Light Company v. Brooklyn, 89 N. Y., 409); that if electricity is also a manufacture it is less easily determinable to be so. When, therefore, file electric companies claimed an exemption, which had been denied to tlie gas companies and was denied to non-mauuiacturing companies, we can readily understand that the amendment of 1889 -was the legislative response to such a claim and a repudiation of it.

We conclude that the defendant was not entitled to the exemption claimed.

Although a part of the relator’s capital stock was invested in patent-rights no deduction should be made from the tax upon that account. The tax is declared by the statute to be upon the “ corporate franchise or business,” and as said in Home Insurance Company v. New York (134 U. S., 594, affirming same case in 92 N. Y., 328), “ it cannot be affected in any way by the character of the property in which the capital stock is invested.” The same case requires ns to overrule the constitutional objection presented.

The Comptroller added to the taxes for 1882 a penalty of eighty per centum, and also added a penalty of ten per centum for each of the years during which payment of the taxes for the years 1883 to 3885, inclusive, had been in default. Section 2 of chapter 361, Laws of 1881, provides that in case the company defaults in making the proper report to the Comptroller, and in paying the tax, that “It shall be the duty of the Comptroller of the State to add ten per centum to the tax of said corporation, company or association for each and eveiy year for which such report or certificate of appraisment and oath or affirmation were not so furnished, or for which such tax shall not have been paid.” We think the penal portion of this section should be construed favorably to the relator; that the language used does not necessarily import that ten per centum shall be added every year that the tax is in default, but is satisfied by adding ten per centum to every year’s tax that is in default. The clauses of the paragraph may be .transposed thus: “add ten per centum to the tax for each and every year of said corporation,” etc., and the meaning is clearer.

• The determination of the Comptroller must be modified by deducting from the aggregate of the taxes and penalties the aggregate of' the excess of the penalties above ten per centum, and as so modified affirmed, without costs, and the said excess must be restored to the relator.

Learned, P. J., concurred.

Mayham, J.:

The respondent insists that section 1 of chapter 361 of the Laws-of 1881 furnishes a tribunal to which the relator could have appealed within a given time after the assessment and notification of this tax, and having failed to make such application no certiorari will lie to review the action of the Comptroller. Chapter 361 of the Laws of 1881 amends chapter 542 of the Laws of 1880 by substituting the act of 1881 for the act of 1880, so that the latter act as amended stands in the place of the former. Section 1 of chapter 361 of the Laws of 1881 provides a general method for ascertaining or making a valuation by the Comptroller, and settling an account upon the valuation so made for the taxes, penalties and interest due the State thereon. “And any association, corporation or joint-stock company dissatisfied with the account so settled, may, within ten days, appeal therefrom to a board consisting of the Secretary of' State, Attorney-General and State Treasurer, which board on such appeal shall affirm or correct the account so settled by the Comptroller ; and the decision of said board shall be final; but such appeal shall not stay proceedings, unless the full amount of the taxes, penalties and interest as due on such account as settled by the Comptroller, he deposited with the State Treasurer.” It will be observed that this appeal is provided for when the Comptroller is not satisfied with the valuation made and returned by the company, he is authorized and empowered to make a valuation thereof, and settle the account upon the valuation so made, and impose the taxes, penalties and interest due the State thereon, and the corporation dissatisfied with the account so made may appeal to the officers above specified. It would seem from this case that the Comptroller did not dissent from the report of the company when made, but the report of the commissioner was based upon the enforced reports-made by the company under protest; and his final imposition of tax and interest was predicated upon these reports, and the dissatisfaction does not appear to be so much with the account settled as with the right or power of the Comptroller to impose a tax upon it, upon the assumed ground that it was a manufacturing corporation doing business wholly within this State. The power of appeal given by section 1 of chapter 361 of the Laws of 1881 is confined to cases where the company is dissatisfied with the account so settled, that is, settled by the Comptroller where he is not satisfied with the valuations returned to him by the corporation. It is not clear, therefore, that the appeal given by this section is applicable to a case of this kind. If it is, and is the only remedy provided by law, the relator would be compelled to pursue it or be remediless; at least, it could not ignore this remedy and resort to one by certiorari, as that writ could not issue, but would be expressly prohibited by section 2122 of the Code of Civil Procedure, which prohibits the issuance of the writ of certiorari, “ where the determination can be adequately reviewed by an appeal to a court, or to some other body or officer.” The language of this provision of the Code is plain, and the rule which it declares is the settled law as established by a uniform current of decisions, both before and since the enactment of the Code. But if this case shall be held to come within the provisions of section 1 above quoted, authorizing an appeal to .the officers therein named; has not sections 19 and 20, which were added to this chapter by the provisions of chapter 163 of the Laws of 1889, made a certiorari applicable to this case ? Section 19 of this chapter authorizes the comptroller to readjust any account theretofore settled by him in a proper case therein specified ; and section 20 provides that “ the action of the Comptroller, upon any application made to him by any person or corporation for a revision and resettlement of accounts, as provided in this act, may he reviewed, both upon the law and the facts upon certiorari by the Supreme Court at the instance either of the party making such application or of the Attorney-General in the name and in behalf of the people of this State, and for that purpose the Comptroller shall return to such cerUorwri the accounts and all evidence submitted to him on such application.”

In the case at bar the relator applied to the Comptroller for a revision and readjustment of the several accounts for tax, and the Comptroller made an order denying such revision or readjustment, assuming to base his action upon chapter 512 of the Laws of 1880, and the several acts amendatory thereof, of which section 20 above quoted is one of the last amendments. We are, therefore, inclined to the opinion that a writ of certiorari may properly be resorted to “by the relator to review the action of the Comptroller in this case.

This brings us to the consideration of the main or most important question in this ease upon the merits. Is this corporation taxable under the provisions of section 3 of chapter 361 of the Laws of 1881 ? That section provided that: “ Every corporation, joint stock company or association whatever, now or hereafter incorporated or organized under any law of this State, or now or hereafter incorporated or organized by or under the laws of any other State or country and doing business in this State, except savings banks and institutions for savings, life insurance companies, banks and foreign insurance companies and manufacturing corporations carrying on manufacture within this State, which exceptions shall not be taken to include gas companies or trust companies, shall be subject to and pay a tax, as a tax, upon its corporate franchise or business,” etc.

The relator claims that it is a manufacturing corporation doing business in this State, and, therefore, exempt from this tax by the terms of the statute. On the other hand, the Comptroller insists that the relator is not a manufacturing corporation within the just meaning of that term, and is not within that exception in the statute; and this contention between the parties the court seems called upon to consider and decide! The relator, although incorporated as a gas company (the effect of which we may consider later) is, as it alleges in its petition, engaged as a manufacturer and seller of electric currents for the purpose of illumination. The relator in its petition, which was presented to the Comptroller on the application for the revision and readjustment of this tax, describes the process in use by the relator for the carrying on of its business of electrical illumination substantially as follows : A steam engine is used as a motive power, for the propulsion of machinery attached to a driving wheel which, by means of a belt connected with another wheel or pulley of the dynamo, turns or revolves the armature. The armature is a coil of wire wound on a metal core and mounted on a shaft and is revolved by the power communicated from the engine through the means of the belt. The armature is revolved within or between the ends of a large horse-shoe magnet, the opening of which is downward. The magnet is made by winding a soft iron horse shoe or soft curved horseshoe-shaped iron with a coil of conducting .wire, and sending through the coil a current of electricity. When once vitalized by such current the magnet never loses this magnetic property, even after the current stops, but is ever afterwards available for the purpose of electric currents upon the armature being revolved between the poles of this magnet. By the rapid revolution of the armature, within what is termed the field of force between the poles of the magnet, this mysterious force or energy is accumulated known as electricity, and is thence conducted over copper bars or mains throughout thé territory or city in which it is used, and is distributed on smaller wires or mains to the houses or places which are to be lighted. On the part of the relator it is claimed that the electricity and electric light thus collected' or produced does not come into being until the revolution of the armature in the field of force as above described. That it has no existence until such revolution, and when the revolutions begin the electricity is developed in a minute quantity, and that the electricity thus produced is a new body; and this contention is sought to be reinforced by the claim that the latent energy in the coal by the combustion of which heat is produced is a factor in electricity, and that it is not unlike the production of gas which is generated from coal, when heated in a retort. But this reinforcing argument fails when we consider that the power which revolves the armature could be as effectually produced by water or horse power as by steam. It is not, therefore, the latent energy that may exist in coal, but that subtle and mysterious power or energy which either exists in nature, and is drawn by these appliances from nature’s store-house or is the product collected by them from some impalpable, intangible and unknown raw material.

As this is a corporation and must, if relieved, from the payment of tax, bring itself within the exceptions, the burden is, we think, upon it to establish its exemption by proving itself to be a manufacturing corporation. It is quite clear that the common and usually accepted signification of the words or phrase “ manufacturing corporations” is a corporation organized for the production of some merchantable commodity out of raw materials, or the change of the form of one material substance into another. Webster defines the word “ manufacture ” to mean to make, or fabricate, raw materials by hand, by art or machinery, and work into forms convenient for use; and, when used as a noun, anything made from raw materials, by hand, or by machinery, or by art.” Within these definitions it is difficult to see how electricity, even when utilized by means of ingenuity and brought into service, can be termed a manufactured commodity, or bow the process of its utilization can he held to be manufacturing electricity or manufacturing electric lights.

Electricity is defined by Webster as “ a power in nature.” Lynch, one of the defendant’s witnesses, says : “The energy or current that is given forth upon the circuits cannot, therefore, be spoken of as a manufactured product, but is always referred to as a result.” And he adds: “ The generation of electricity may be considered as a power drawing a supply of electricity from Nature’s Well, and the nearest practical illustration would be a series of pumps drawing water from a well and sending same through a series of pipes.” And, as another illustration, he says: “It would be the controlling of the flow of the natural gas wells and sending' same to some distance, as is practically illustrated at Pittsburg.” Another witness says : “ While the nature of electricity is not thoroughly understood, it is admitted to be a mere form of energy, and not a material substance in any sense of the word, and, therefore, not capable of manufacture.” It is quite clear that the legislature, in imposing this tax and creating the exemptions therefrom, intended tó use the words “manufacturing corporations” in their ordinary'sense, and so the courts of this State have uniformly held that where the corporation is engaged in gathering natural products or material existing in nature it is not a manufacturing corporation.

In the People v. The Knickerbocker Ice Company (99 N. Y , 182), the court distinctly held that the collection of an article existing in nature, such as ice, and storing it for use and sale, was not a manufacturing company within the meaning of this statute. To the same effect is the case of the People v. The New York Floating Dry Dock Company (92 N. Y., 487); and where similar questions have arisen in other States, the rule contended for by the comptroller in this case has been sustained. (Byers v. Franklin Coal Company, 106 Mass., 131; Dudley v. Jamacia Pond Aqueduct, 100 id., 183; Frazee v. Moffitt, 20 Blatchford, 267.) And in the recent ease of the Commonwealth of Pennsylvania v. The United States Electric-Light Company, decided in June, 1888 (see 7 Pa. County Court Rep., 90), the court, in an elaborate opinion, pronounced upon a statute similar to the one under consideration in this case, and by cogent argument demonstrated that neither electricity or light produced by it is a material substance capable of manufacture; and that the electric-light company was not, therefore, a manufacturing company within the meaning- of the statute exempting manufacturing companies from taxation upon their capital stock and franchise. Holding, as it does, the affirmative upon this subject, and assuming, as it must, the burden of bringiug itself within the exemption it claims (Cooley on Taxation, 146; Academy of Fine Arts v. Philadelphia County, 22 Pa. St. Rep., 496 ; The People ex rel. Osgood v. Comr. of Taxes, 99 N. Y., 154) we think the relator has failed in its contention upon this point; especially when we take into account the legislative intent as manifested by the amendment»of section 3 of chapter 361 of the Laws of 1881, as amended by chapter 353 of the Laws of 1889, which expressly provides that the exemption from taxation shall not include gas companies, trust companies, electric or steam-heating, lighting and power companies,” and therein expressly provides that they shall pay a tax upon their franchise and business. It is true that the amendment was passed after the time for the accruing of the taxes imposed by the Comptroller in this case; but it appears to be a clear legislative expression of the intent with which the original act was passed, and being a statute, in pari materia with that act, may be taken as indicative of the legislative intent in aid of a construction of its provisions when doubt has been cast upon the true meaning of the original act. In People ex rel. Westchester Fire Insurance Company v. Davenport et al. (91 N. Y, 592, 593), the court, in discussing this subject says: “ The force which should be given to subsequent, as affecting prior legislation, depends largely ujDon the circmftstances under which it takes place. If it follows immediately, and after controversies upon the use of doubtful phraseology therein have arisen as to the true construction of the prior law, it is entitled to great weight.” But independently of this apparent legislative interpretation, -we are of the opinion that the corporation seeking exemption in this case does not come within the exception contained in the original act. The Comptroller, as a public officer, is charged with the duty of imposing the taxes and penalties provided for in these acts of the legislature, and his acts and determinations cannot be reversed by the courts unless it clearly appears that his determination was against the weight of evidence upon questions of fact, or unless it clearly appears that his conclusions of law were erroneous. (Code of Civil Pro., § 2140.) In support of a claim to reduce or modify an assessment made by a public officer having jurisdiction of the party and subject-matter, it must be made to appear affirmatively that the assessment is in part or in whole erroneous. (The People ex rel. Osgood v. The Commissioner of Taxes of N. Y., 99 N. Y., 154.)

It is insisted by the relator that a part of the tax imposed is upon patents granted by the United States, which are exempt from taxation under State laws or State authority. If this were a property tax, there might be great force in the contention of the relator upon this point, but it is not, but a tax upon the franchise. The franchise is a grant from the State, and the legislature has, by virtue of its jurisdiction over corporations organized under its laws, authority to impose such a tax, and the Court of Appeals have expressly held that in taxing corporations under chapter 542 of the Laws of 1880, as amended, the State authorities are not required to deduct the amount of stock which the corporation holds in United States bonds from the total amount of its capital stock, and to compute the tax only upon dividends derived from the remainder. (The People of the State of New York v. The Home Ins. Co., 92 N. Y., 328.) Upon all the questions raised by the relator by the certiorari and presented in this case, I think no substantial error is shown te have been committed by the Comptroller in the imposition of this tax. Nor do I think the additions of interest 'annually was improper. The language of section 15 of chapter 501 of the Laws of 1885 is as follows : “All accounts hereafter settled by the comptroller, agreeably to the provisions of this act, shall bear interest from a date thirty days after the sending of notice of settlement hereinafter provided for, until full payment thereof shall be made.’' This provision is mandatory on the Comptroller, and I think was executed, by him according to its legal effect.

I think the action of the Comptroller should be confirmed and the-writ of certiorari quashed, with fifty dollars costs and disbursements, against the relator.

Judgment for modifying decision of Comptroller by deducting from -aggregate of taxes and penalties the excess of the penalties-, over ten per cent, and as so modified confirmed, without costs, suck excess to be restored to the relator.