author: May ham, P. J.: Putnam and Hebbiok, JJ.,

text:
    In the Matter of the Taxation of the Property of Emeline P. Nichols, Deceased, under Chapter 399 of the Laws of 1892. Abel Merchant, as Executor, etc., of Emeline P. Nichols, Deceased, and Others, Appellants; George H. Macy, County Treasurer of Columbia County, Respondent.

      Transfer and succession tax ■ — mutually acknowledged relation of parent, not limited to illegitimate children — construction of legislative act — words not interpolated unnecessarily.

    The Legislature is presumed to use apt words to express the meaning and intent of its enactments, and it is ordinarily the duty of the court, in construing legislative acts, to give the language employed in them its usual and ordinary-signification and force.
    The court should not interpolate words into a statute where the language is clear without such interpolation; as to do so amounts to unauthorized judicial legislation.
    Where a testatrix, for more than ten years prior to the time when she made her will, stood in the mutually acknowledged relation of parent to a legatee under her will, a bequest to such legatee is, by the express language of section 2 of chapter 399 of the Laws of 1892, exempt from the five per cent succession or transfer tax imposed by that statute.
    The exemption from taxation created by section 2 of chapter 399 of the Laws of 1892, is not limited to illegitimate children, but extends to all cases where the-decedent, grantor, donor or vendor has, for not less than ten years prior to the transfer, stood in the mutually acknowledged relation of parent to the person whose interest is sought to be taxed.

      Matter of Hunt (86 Hun, 232), distinguished.
    Appeal by Abel Merchant, as executor, etc., of Emeline P. Nichols, deceased, and others, from an order and decree of the Surrogate’s Court of the county of Columbia, entered in said Surrogate’s-Court on the 16th day of July, 1895, confirming the report of an appraiser appointed by the surrogate, and assessing the inheritance tax up>on the property and interests of certain legatees under said will, and also from an order or decree of said Surrogate’-s Court, entered in said .Surrogate’s Court on the 28th day of September, 1895, dismissing the appellants’ appeal from said order and assessment and affirming the said order, and ad judging that the property and interests of certain legatees mentioned .in said will were subject to the operation of chapter 399 of the Laws of 1892.

      John B. Holmes, for the appellants.

      N. H. Brooming, for the respondent.
   May ham, P. J.:

The appraiser appointed by the surrogate, under the provisions of chapter 399 of the Laws of 1892, fixed the fair market value of that portion of the real and personal estate devised and bequeathed to the devisees and legatees, in whose behalf this appeal is taken, as follows:

To Josephine Beers, real estate $1,000, and personal property $7,624.68.

To Carrie N. Childs, real estate $1,000, and personal property $7,627.88.

To Phoebe S. Walker, real estate.$1,000, and personal property $7,750.08.

The correctness of these appraisals is in no way questioned or in controversy on this appeal.

On these apyiraisals the surrogate imposed a transfer tax of five per cent, and from the order fixing such tax this executor and each of the above-named devisees and legatees appealed to the surrogate, claiming on such appeal that these legatees should only be taxed one per cent on the clear market value of the personal property transferred to them under and by virtue of the will, and that nothing should be taxed upon the real estate devised to them, for the reason that for more than ten years prior to the transfer of such property, each of such devisees and legatees had stood.in the mutually acknowledged relation of parent and child to the testatrix.

That appeal was brought to a hearing, and on such hearing it was shown, by undisputed testimony and other evidence, that each of the devisees and legatees who are' appellants herein were in infancy taken by the testatrix into her family, and were in all things reared, oducated and provided for as her children, were called by her name and adopted the same, and were treated as her children, and as sisters (although the case 'does not disclose that they were in any way of kin to her or to each other), and that each of them so lived in her family and occupied that relation to her and to each other for more than ten years; that the testatrix spoke of and to them as her daughters, corresponded with them by letter as such, and, on their marriage, furnished each of them, respectively with an outfit and wedding, gave them birthday and holiday presents as is customary between parent and children. And testatrix in her will referred to them as “ having lived many years in my family, and married therefrom, and regarded as my children.”

On such appeal the surrogate affirmed the order and decree appealed from, and dismissed the appeal, and from that determinar tion the appellants appeal to this court.

The only question presented on this appeal for determination is whether, under the provisions of section 2 of chapter 399 of the Laws of 1892, the testatrix, “ for not less than ten years prior to such transfer, stood in the mutually acknowledged relation of a parent ” to these appellant beneficiaries under her will, within the meaning of the provisions of that section. There are three distinct classes exempted from the succession tax of five per cent by section 2 of chapter 399 of the Laws of 1892.

Tirst. The persons expressly named in that section, being the father, mother, husband, wife, child, brother, sister, wife or widow ef a son, or husband of a daughter of the testator, donor or grantor, and the lineal descendants of such decedent, grantor, donor or vendor, born in lawful wedlock.

Second. Any child or children adopted by decedent, grantor, donor or vendor in conformity with the laws of this State.

Third. Any person to whom any such decedent, grantor, donor or vendor, for not less than ten years prior to sucli transfer, stood in the mutually acknowledged relation of a parent.

It is conceded that the appellants do not come within the first or second class above enumerated; but it is insisted that the appellants, who are devisees and legatees, in this case are persons as to whom the testatrix stood in the mutually acknowledged relation of parent for more than ten'years prior to the making of the devise and bequests to them in the will, and are, therefore, exempt from the five per cent succession tax.

If this exemption can be based simply upon the mutually acknowledged relation of parent, without the existence of that relation in fact, a stronger case for its allowance than the one under consideration cannot well be imagined.

But it is insisted by the learned counsel for the respondent that “ the mutually acknowledged relation of parent ” is not enough, unless it prove the parentage in fact, and in support of that contention he cites Matter of Hunt (86 Hun, 232), and claims that that is a case precisely in point and decisive of this question.

The great respect entertained by this court for the opinion of the distinguished judge who pronounced the opinion of the court in that case, and for the learned judges in that department who concurred in his opinion, as'well as the desire of this court to follow well-considered opinions pronounced upon the same question in other co-ordinate departments of this court, furnish sufficient reason for this department to follow the decision in that case, provided, on examination it shall be found that the case under consideration is identical in principle and fact with the case to which we are referred.

On a careful examination of the case, Matter of Hunt (supra), we think it distinguishable from the one at bar in many important particulars. It does not show that the beneficiary named in the will had lived in testator’s family for ten years prior to the bequest, in the mutually acknowledged relation of a child, or that the decedent and legatee had ever recognized or acknowledged the existence of such family relation; on the contrary, the testator in his will speaks of her as his niece, and does not appear to have assumed towards her at any time the relation of parent, and there does not appear to have been anything in their relation to warrant the inference, that she lived with him as his daughter.

There is no doubt, therefore, of the correctness of the determination of the court in that case, and as the exemption in the statute did not apply to that case, the court was not necessarily called upon to determine what persons or class of persons came within the exemption, so long as it did not embrace the person named in the will, and we think that the remark of the judge, which tended to limit this provision of the statute to illegitimate children, and expressly his statement that “ all that the clause in question seems to have been intended to cover was the case where an illegitimate child had been recognized by its parents, and such recognizance was mutual, and had continued for ten years,” was not necessary for the decision of the case he was considering, and was, therefore, oiiter.

If we are right in our conclusion that the Hunt case differs from this, and that the statement of the judge above quoted was not neeessary to tile determination of that case, then we may, without questioning the correctness of that result, examine this statute as applicable to the case at bar without impugning the correctness of that decision. "We are, therefore, at liberty to examine this statute as an original proposition, and in the light of all the adjudications bearing-upon the case. Section 2 of chapter 399 of the Laws <5f 1S92 reads as follows : “ When the property or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or auy child or children, adopted as such in conformity with the laws of this State, of the decedent, grantor, donor or vendor, or to any person to whom any such decedent, grantor, donor or vendor, for'not less than ten years prior to such transfer, stood in 'the mutually acknowledged relation of a parent, or to any lineal descendant of such decedent, grantor, donor or vendor, born in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten thousand dollars or more, in which case it shall be taxable under this act, at the rate of one pier centupi upon the clear market value of such pn-operty.”

If this language is capable of construction as it stauds, without interpolating or importing into it any idea or significance not clearly expressed or contained in its wording, it is the duty of the court so-to construe it. The Legislature is presumed to use apt words to-express the meaning and intent of its enactments, and it is ordinarily the duty of the court, in construing an act of the Legislature, to give the language employed its usual and ordinary signification and force..

Tested by this ride, what was the intent of the Legislature when in this act it used the words extending this exemption to any pierson to whom any such decedent, grantor, donor or vendor, for not less than ten years prior to such transfer, stood in the mutually acknowledged relation of a parent ? ” Hid the Legislature, in the use of the words any person,” empiloy them in the general sense which the wor,ds themselves clearly impiort ? Or did it intend that the court, in construing that general expression should interpolate between the adjective and noun the qualifying adjective “ illegitimate,” so that it should read and mean any illegitimate person,” etc. If' that was not the legislative intent then the insertion of that wprd by the court would, it seems to ns, be unauthorized judicial legislation. It seems clear to us that the use of these general words was intended to embrace a class of persons, who, while not in fact sustaining the blood relation of parent and child, had assumed and adopted that conventional relation, by mutually acknowledging it by their method of living, and mutual recognition of that relation for ten years.

It does not seem to be the fact of the existence of the relation, but the acknowledgment of its existence for the time fixed, which controls the right to the exemption from this tax.

The existence of the relation to the decedent, donor, grantor or vendor of the kinsmen by consanguinity or affinity, or actual adoption according to the laws of the State, entitles the, persons designated to the exemption without regard to the t'imetof the existence of such relations, while the acknowledged relation of parent and child to be effectual for that purpose must be for a period of ten years.

There is no apparent reason for that extended period, if the relation of parent and child existed in fact, although the beneficiary was not born in lawful wedlock, and the paternity or maternity in fact was intended as the only ground of exemption.

But when the relation of parent and child was the result of conventional arrangement, mutual acknowledgment of the existence of that relation for a period of ten years was made conclusive evidence of its existence. While it is true that the existence of such a conventional arrangement would not allow the child to inherit the estate of the decedent, in the absence of a testamentary provision in its favor, still there are many cases in which the law recognizes and gives effect to a presumed or implied obligation growing out of such relation, where the parties stand in the relation of parent and child, and it may be assumed that in enacting this statute the Legislature had in view the existence of such obligations.

It is urged by the respondent that, as the Legislature refers in this section to children born in lawful wedlock, it must have had in mind illegitimate children, and hence, the provision under discussion must have related to such persons; but it may with equal and perhaps more force be urged that as such children were in contemplation by the Legislature if .it had intended this-provision to apply to them solely, it, instead of using the phrase “to any person,” would have said “to any illegitimate person,” and thus limited the effect of the word “ any ” to that class of persons. Ve, are therefore, led. to conclude that the language used was not intended to restrict this exemption to illegitimate children alone, but was intended to cover cases of children adopted in fact, and where the mutually acknowledged relation of parent and child had existed for ten years prior to the transfer.

This view is strengthened by some of the adjudications upon the •Collateral Inheritance or Succession Tax Law.

In Matter of Butler (58 Hun, 400) it was held that where the decedent had adopted a boy two years of age, under the laws of the State of Massachusetts, who lived with the testator for eleven yeai’s,. when the testator died, after having bequeathed to the boy .about $50,000, the bequest was not chargeable with the collateral inheritance tax, imposed under chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, which provided for the exemption from the payment of such tax of “ Any child nr children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased, for not less than ten years prior to his or her death, stood in the mutually acknowledged relation of a parent,” and Dykman, J., in delivering the opinion of the General Term in the second department, in discussing that case, uses this language: “ There is no reason for a severe construction of this statute. This boy was legally adopted under laws substantially similar to our own, so far as the mode of procedure is concerned, and that is sufficient to answer the requirements of this law. Moreover the deceased stood■ in the mutally ■achnovdledged relation of a parent to this appellant for eleven years and a half prior to his death. No evidence of adoption is required by this portion of the statute but mutual acknowledgment, and that is proven in this case by all the facts and circumstances which cluster around these parties from the commencement of their relation, to the death of the testator.”

The provisions of chapter 713 of the Laws of 1887 upon this subject are substantially identical with the provisions of section 2 of chapter 399 of the Laws of 1892; and there is a marked similarity between that case (Matter of Butler, supra) and the one at bar in reference to the mutually acknowledged relation of parent and child; and if in that case no evidence of legal adoption was required, the same must be true in this.

The learned judge, in his opinion in Matter of Butler (supra), quotes with approbation the opinion of Kennedy, Surrogate, in Matter of Spencer (21 N. Y. St. Repr. 145), in which it was held that the relation of one who stands in the place of a parent may arise by virtue of an agreement between adults, or from circumstances surrounding the commencement and continuance of such relations, and that it -was the intent of the law to give this class of cases the benefit of its exempting clause.

In Matter of Wheeler (51 N. Y. St. Repr. 513), Davie, Surrogate, held that one who had been brought up by the testator from childhood, and treated as one of the family, although not adopted by him, is one to whom he stood in the relation of a parent, within the meaning of section 2 of chapter 399 of the Laws of 1892.

None of these cases are referred to or considered in Matter of Jiwnt (supra), but each is more directly in point with the case under consideration, and more in accord with our Adews of the construction of this statute than that case. We are, therefore, of the opinion that the learned surrogate erred in affirming the order appealed from, and dismissing the appeal. The order and decree of the surrogate, made and entered on the 16th day of July, 1895, assessing the tax at the rate of five per centum on the value of the property appraised as belonging to Josephine Beers, Carrie N. Childs and Phoebe S. Walker, appellants herein, and the order dismissing their appeal, made and entered on the 28th day of September, 1895, are reversed, and the order of July sixteenth so modified as to impose a tax of one per centum on the appraised value of the personal property bequeathed to the said appellants respectively, and the real estate devised to them respectively should be exempted from any succession tax, with costs and disbursements of this appeal to the appellants.

Putnam and Hebbiok, JJ.,

concurred.

Order of surrogate reversed, and order of July sixteenth so modified as to impose a tax of one per centum upon the appraised value of the personal property bequeathed to the appellants respectively, and to exempt the real estate devised to them from any succession tax, with costs and disbursements of this appeal to the appellants, to be paid by the county treasurer of the county of Columbia.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    The People of the State of New York ex rel. Joseph E. McNutt, Respondent, v. Charles H. Mills and Others, as Commissioners of Excise of the City of Albany, Appellants.

      Excise commissioners — may refuse to license a person of bad character — their right to a/i'bitrarily refuse a license.

    Excise commissioners arc vested witli a discretion relative to the persons to whom they will grant-licenses, and as to the places where liquor may be sold, and may refuse to grant a license upon the ground that the person seeking it is not of good moral character, or that the place kept by him is frequented by lewd women or used as a resort for immoral purposes.
    The right of the excise commissioners to arbitrarily refuse a license considered.
    Appeal by Charles Ii. Mills and others, as commissioners of ■excise of the city of Albany, N. Y., from a judgment of the County Court of Albany county, entered in the office of .the cleric of the ■county of Albany on the 16th day of August, 1895, determining that the application by the relator for a hotel license liad.been .arbitrarily denied by them without good and valid reasons, and ■directing them to grant said application of the relator for a hotel license in the city of Albany, New York, and also from an order of the County Court of Albany county, entered in said clerk’s office on the 16th day of August, 1895, directing the commissioners of excise of the city of Albany to grant the relator’s application.

      Richard O. Bassett, for the appellants.

      McmB, (John, for the respondent.
   Per Curiam:

The relator on the 13th day of May, 1895, made application to the defendants, as excise commissioners of the city of Albany, for a hotel license for the premises No. 667 Broadway, in the city of Albany, he having occupied and had a hotel license for the same ■during the previous year.

The petition of the relator for such license appears to have been in proper form, and accompanied with a bond and a deposit of the prescribed license fee.

On the fifteenth of May the defendants,- without giving any hearing to the relator, denied his application for a license on the ground, first, that the relator was not a person of good moral ■character, and, second, that, considering the rights and interests of the property owners and the residents of the neighborhood, and the existing licensed places in the vicinity, they were satisfied that there was no immediate public necessity to be served in granting such license.

Thereafter the relator requested a hearing upon his application, and upon such hearing witnesses were sworn and a petition signed by a number of citizens was presented to the board, and after such hearing the defendants, as such board of excise commissioners, passed the following resolution :

“ Resol/oed, That the application of Joseph E. McNutt for a hotel license at the premises 667 Broadway he and the same hereby is rejected and a license refused, for the reason that, considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sought, the commissioners of excise are satisfied that there is no immediate public necessity or convenience to be served in granting such application at this time.”

If in determining this appeal we were confined to this resolution as containing the sole reason for the defendants’ action, we would feel constrained to uphold the decision appealed from, aiid adjudge the action of the commissioners to have been arbitrary, and an abuse of the discretion confided in them, for it appears in the papers accompanying their're turn, and in the return itself, that, after refusing to grant the relator a hotel license because of the number of licensed places within the territory specified in the return, it appears that they subsequently granted a number of saloon licenses to other persons, and renewed existing licenses within such territory, and granted leave for the transfer of licenses from places without such territory to places within it.

But the return of the defendants to the writ of certiorari herein issued asserts that, in the judgment of each of the defendants, The Commercial Hotel, the premises for which relator seeks a license, is and has been kept by the relator in such a manner as warrants this board in holding, in reference to this application, that the relator is not a person of good moral character. * * * That this hotel for which relator seeks a license was very carelessly run, and people were permitted to frequent it who ought not to do so, and that it was run as a place for lewd women to visit for illicit sexual intercourse.”

There was evidence from which the commissioners might have reached these conclusions, taken upon the hearing before them, and we do not feel that the conclusions arrived at by them were wholly unwarranted by the evidence.

Under the discretion that is vested in the commissioners of excise, as to whom, and what places they will license, we think that they have power to refuse a license upon the grounds that the person seeking it is not of a good moral character, or that the place kept by him is frequented by lewd women, or used as a resort for immoral purposes, and that a refusal to grant a license upon such grounds is not arbitrary or an abuse of the discretion vested in them.

For these reasons we think that the order of the County Court should be reversed and the decision of the commissioners affirmed, with fifty dollars costs and disbursements.

Present — Maybam, P. J., Putnam and Herrick, JJ.

Order of County Court reversed, decision of commissioners affirmed, with fifty dollars costs and disbursements.


text:
    The People of the State of New York ex rel. John Hoy, Respondent, v. Charles H. Mills and Others, Constituting the Board of Excise Commissioners of the City of Albany, Appellants.

      Excise commissioners — may refuse a license upon the ground that a sufficient number of licenses home been granted, or that the premises are used for immoral purposes.

    A board of excise has a right to limit the number of places which it will license for the sale of liquor in a specified territory, and its refusal to grant a license, upon the ground that there are a sufficient number of places already licensed within the specified territory, should be sustained upon appeal, unless the court is satisfied that the ground stated is a subterfuge and does not constitute the real reason for their refusal.
    The fact that an applicant for a license is not, in the opinion of the board, a man of good moral character, and that the board is convinced that the premises in question are used for immoral 'purposes, constitute sufficient grounds for a refusal, upon the part of excise .commissioners, to grant a license.

      Appear by Charles H. Mills and others, from an order of the Albany County Court, entered in the office of the clerk of the county of Albany on the 15th day of Novemfiei’j 1895, determining that the application of the relator for a hotel license had been arbitrarily denied by them without good and valid reasons, and directing them to grant said application of the relator for a hotel license in the city of Albany, New York.

      Richard O. Bassett, for the appellants.

      George H. Stevens, for the respondent.
   Per Curiam:

The relator in this case made an application for a hotel license. After the hearing of such application, upon which much testimony was taken, the defendants adopted the following resolution:

“ Resolved, That the application of John Hóy, for a hotel license, at the premises 334 Broadway, is hereby rejected and a license refused, for the reason that, considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sought, the commissioners of excise are satisfied that there is no immediate necessity or convenience to be served in granting such an application at this time; and on the- further ground that said Hoy is not a man of good moral character approved by the board; that this board is convinced that the premises for which a license is asked has been kept by said Hoy for a long period of time as a place for persons to visit for unlawful sexual intercourse, and as such is a nuisance to the neighborhood and the city.”

"We think that the board of excise has the right to limit the number of places at which they will license the sale of liquor in a specified territory, and that a refusal to grant a license upon the ground that there are a sufficient number of places already licensed within such specified territory should be sustained, unless the court is satisfied that such ground is a subterfuge, and does not constitute the real reason for their action.

The other grounds for the refusal to grant the license, i. e., the immoral character of the applicant and the uses to which lie permitted. his place to be put during his occupancy of it, we think were sustained by the evidence taken by and before said commissioners, and afford good and valid reasons for the refusal of the defendants to grant the license asked for.

For these reasons the order of the County Court should be reversed, and the decision of the commissioners affirmed, with fifty dollars costs and disbursements.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Order of County Court reversed ; decision of the commissioners affirmed, with fifty dollars costs and disbursements.


author: Putnam, J.:

text:
    The People of the State of New York ex rel. The Gramercy Company, Relator, v. James A. Roberts, as Comptroller of the State of New York. Respondent.

      Corporation —franchise tax — burden of proof— stockholders renting rooms in an . apa/i'tment house— valuation.

    Where a proceeding is taken to review an assessment made against a corporation for the purposes of the franchise tax, imposed by chapter 543 of the Laws of 1880, and the several acts amendatory thereof and supplemental thereto, the burden rests upon the relator to show that the decision of the Comptroller is erroneous.
    In a proceeding of this nature it appeared that the relator was incorporated under chapter 40 of the Laws of 1848, with a paid-up capital of $165,000, invested solely in an apartment house in New York city; that it purchased the building with its capital, subject to a mortgage for $335,000, which was subsequently reduced to $305,000; that when the company was organized leases for the life of the corporation were made of eighteen apartments in the building to eighteen stockholders, who contracted to pay in certain proportions any deficit in the annual expenses of conducting the corporate business; that eight other apartments were reserved by the corporation and had been rented to persons not stockholders; that the annual expenses of the company were between $30,000 and $35,000, while the income from apartments leased to non-stockholders was only $13,000, and that the deficit of about $30,000 was apportioned among the holders of the eighteen leases.
    There was evidence, however, of the value of the eighteen .apartments which showed that if all the apartments were rented to strangers the property would produce at least $40,000 a year.

      A witness testified that in fixing the value of an apartment the shares of stock 'held by the occupant were considered, and the effect of his evidence was that the lease was virtually attached to the stock held by the lessee. It did not appear that any of the shares of stock had ever been sold.

      Held, that the Comptroller was justified in assuming that the capital stock should be valued at §165,000, and that the corporation had failed to show any impairment of the capital stock.
    Certiorari issued out of the Supreme Court and attested ou the 25th day of April, 1895, directed to dames A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings and actions, and the evidence, documents, records and papers before him, touching or concerning the valuation for assessment or taxation of the capital stock of the relator used within the State of New York, or in anywise in respect thereto.

      Fisher A. BaTcer, for the relator.
    ‘ T. E. Hancock, Attorney-General, and G. D. B. Hasbrouck, Deputy Attorney-General, for the respondent.
   Putnam, J.:

This is a proceeding to review the determination of the Comptroller in assessing a franchise tax against relator for the four years ending November 1, 1894, under the provisions of chapter 542 of the Laws of 1880, and the several acts amendatory thereof and supplemental thereto.

The relator is a domestic corporation, incorporated under the Manufacturing Act of 1848, with a paid-up capital of $165,000, solely invested in an apartment house in Gramercv Park, New York city. The company purchased the building with said capital, subject to a mortgage of $225,000, since reduced to $205,000.

At the organization of the company leases in perpetuity, or during the existence of the corporation, were made to its eighteen stockholders of eighteen apartments in the building. The lessees contracted to pay in certain proportions the deficit in the annual expenses of conducting the corporate business. The trustees fixed the amount of the assessment in proportion to the number of shares of stock owned by those to whom the leases were made. Eight apartments were reserved, by the relator, and have been from time to time rented to others not stockholders. The expenses of the company were interest on the mortgage, taxes, insurance, water rents, elevator service, and an engineer’s and janitor’s services, and amounted to between $30,000 and $35,000 anmially. The gross income from the apartments leased to those not stockholders was about $12,000, leaving an annual deficit of about $20,000. This deficit is apportioned among and paid by the holders of the eighteen perpetual leases, as before stated, in proportion to the amount of stock held by them respectively. There are three classes. In the. third class the assessment was based on forty-five shares of, stock ; in the second on eighty shares, and in the first on a number above eighty shares. The papers submitted do not contain a copy of the articles of association of the corporation or a statement of the provisions of the leases, but I infer that a sale of stock necessarily accompanied a transfer of a lease.

It is not denied that relator is liable to pay a franchise tax under the act of 1880 on the cash value of its capital stock. But it is urged that the evidence produced before the Comptroller on the rehearing made it appear that the relator’s capital stock had no cash value whatever.

In a proceeding to review an assessment against a corporation under the act of 1880 the burden rests upon the relator to show the error of the Comptroller, if any. (People ex rel. Western Electric Co. v. Campbell, 80 Hun, 466; 145 N. Y. 587; People ex rel. Anner. Contracting & Dredging Co. v. Wemple, 129 id. 565; People ex rel. Roebling’s Sons’ Co. v. Wemple, 138 id. 583.)

The question, therefore, to be determined by us is, does the relator show error on the part of the Comptroller in his valuation of its capital stock ?

He clearly had some basis for his valuation of such stock. It was shown that the whole amount of relator’s capital, $165,000, had been paid up and invested by it in the Gramercy Park apartment house which the corporation purchased for said sum subject to a mortgage of $225,000, since reduced to $205,000. The fact that the corporate capital of $165,000 was recently invested by the company in real estate yet owned by it was sufficient in the first instance to justify the action of the Comptroller. He had at least some grounds for not believing that the capital stock of relator of $165,000 so invested in real estate was, as claimed by it, of no value whatever.

The corporation raised by the subscriptions of its stockholders $165,000, for which sum it purchased the apartment house in Gramercy Park, issuing to its subscribers $165,000 in stock. The stockholders, so to speak, are the corporation ; they own the corporate stock, control the corporate action, are entitled to the profits resulting from the corporate business, and ultimately, on the dissolution of the company, to so much of the fund created by their subscriptions as remains unimpaired and is not liable for corporate debts.

Relator on the rehearing before the Comptroller took on itself the burden of showing that its capital stock — -$165,000—-recently raised and invested in real estate, was of no value, or of less value than the amount at which it was assessed by the Comptroller. As none of the stock had been sold, the question was not as to its market value, but its intrinsic value. 'In the absence of other satisfactory evidence, the sum raised by the stockholders, and paid over to the corporation, and by it invested in real estate, was some evidence of the value of the capital stock issued for the amount thus raised.

Had relator on the rehearing made it appear that the Gramercy Park apartment house, for which it had paid $165,000, was worth nothing, or a less sum than the amount so paid, that fact would have tended to show that the Comptroller had not reached a correct conclusion. But no such- fact was shown. On -the contrary, the evidence rather indicated that the interest of the corporation in the house in question was worth more than when it first made the investment. It had reduced the mortgage on the premises, subject to which it purchased, $20,000. For all that appears in the case, should the company elect to dissolve and sell the premises - — - which it could do, as the leases are only made to continue during the corporate existence ■— the corporation on such sale might receive a sum equal to the whole amount of the capital stock issued; and as it is not 'claimed that it has incurred debts, such sum could be divided among the stockholders.

Again, it appeared that the annual expenses of carrying on relator’s business was about $32,000. If it had been shown that the rental value of the rooms in the Gramercy Park apartment house did not exceed $32,000, or very slightly exceeded that sum, such fact would have tended to show an error in the calculation of the Comptroller. It might- well have been inferred therefrom that the corporation had made a poor investment, and that in consequence thereof the value of its capital stock was not equal to the amount invested in the building. But relator did not show any such state of facts. According to the statement of the witness., .Peabody, of the eighteen apartments leased to stockholders, six or seven were of the first class and worth $2,000 each per year — one of them worth $2,500; six were of the second class and worth $1,600 each per year; and five were of the third class and worth $900 each per year. The eight apartments rented to those not stockholders brought $12,000 per year. The real rental value of the apartments of the Gramercy Park apartment house, as far as the evidence discloses, therefore, was as follows:

For 8 apartments................................... $12,000

“ Y apartments, first class, $2,000 each............... 14,000

“ 6 apartments, second class, $1,600 each............ 9,600

“ 5 apartments, third class, $900 each................ 4,500

Total.......................................... $40,100

Annual expenses were................................ 32,500

Leaving as tlie balance of the value of the rents over the expenses......................................... $Y,600 a sum equal to a fair dividend on the capital stock of the corporation.

The evidence taken before the Comptroller, therefore, tends to show that if the corporation, instead of leasing to its stockholders, should lease to others at the real rental value of the apartments, it would derive from rents a fair dividend on its capital. But, instead of so leasing, the stockholders take the apartments, and thus by a reduced rent obtain the benefit of their stock investment. As may be inferred from the evidence, they are called upon to pay $20,000 rental for apartments worth $2Y,500.,

The witness Peabody, in giving the rental value of the several apartments, said: “ Ve have set off, as involving each one, a simultaneous assumption of a certain number of shares of capital,-which-fixed tlie assessment pro rata as nearly as we could estimate its value then.” Again he says: “ My stock is worth less than nothing, if I may express it that way. * * * It is utterly unsaleable, because such a thing as a sale of stock has never taken place unless except the necessary transfer on the stock books in connection with the sale of the lease, or, as we call it, the sale of an apartment.” I do not think this evidence avails relator. It appears that a lease of an apartment is made to the several stockholders and goes with each stockholder’s stock. Had the witness testified that his stock, together with his lease of an apartment, was of no value, the case might have been different'. As the corporation conducts its business, a lease of an apartment is, so to speak, appurtenant to the stock held by the several stockholders. In estimating the present value of the capital stock of relator, therefore, it is necessary to take into consideration the value of the several leases that go with the stock.

On the whole we reach the conclusion that the Comptroller was justified in the first instance in assuming that the value of the capital stock of relator, $165,000, which represented a building for which it had paid that sum, was the sum so paid; that the corporation has failed to show any impairment of its capital stock so represented by said building, or that its stockholders do not receive a benefit on account of their stock in the way of reduced rentals, or that the determination of the Comptroller in any regard was erroneous.

The decision of the Comptroller should be affirmed and the certiorari quashed, with fifty dollars costs and disbursements.

Mayham, P. J., and Herrick, J., concurred.

Writ of certiorari quashed, decision of the Comptroller affirmed, with fifty dollars costs and disbursements.


author: Putnam, J.

text:
    The People of the State of New York, Appellant, v. Oscar England, Respondent. Same, Appellant, v. Thomas N. Madill and Oscar England, Respondents.

      Bribery, at a caucus or convention ■ — construction of a statute — the effect of a statutory modification of the punishment for a crime, after its commission.

    Where a question arises as to the intent of the Legislature in enacting a statute, acts in pari materia, passed previously or subsequently, and contemporaneous legislation, although not precisely in pari materia, may be considered.
    A person was indicted on October 8, 1895, under the provision of section 41 of the Penal Code for the alleged offense of bribery committed on the 23d day of August, 1895. Under the law in force when the alleged offense was committed he was punishable under the provisions of section 15 of the Penal Code by fine or imprisonment, or by both. Under chapter 721 of the Laws of 1895, which took effect on September 1, 1895, the punishment for the alleged offense was by imprisonment only. The defendant demurred to the indictment and the court below held that, as the statute in force when the indictment was found prespribed a different punishment from that fixed by the law in force at the time the offense was committed, the defendant could not be punished under the statute in force when the crime was alleged to have been committed, as it had been repealed, nor under the new statute which did not exist when the crime was alleged to have been committed.

      Held, inasmuch as section 719 of the Penal Code provides that “Nothing contained in any provision of this Code applies to an offense committed or other act done at any time before this Code takes effect; such an offense must be punished according to, and such act must be governed by, the provisions of law existing when it is done or committed in the same manner as if this Code had not been passed,” and as the Statutory Construction Law (Chap. 677 of 1892) provides that it shall be applicable to every statute “ unless its general object, or the context of the language construed,, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter; ” and as section 31 of the act provides that “the repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been effected,” — that the Legislature would not be considered to have intended that the amendment to section 41 of the Penal Code, effected by chapter 721 of the Laws of 1895, should apply to offenses which had already been committed when that amendment took effect;

      That an offense committed before September 1, 1895, was punishable in the manner prescribed by section 41 of the Penal Code as it stood at the time when the offense was committed.
    Appeal by the plaintiff, The People of the State of New York, from judgments of the Court of Sessions of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 16th day of November, 1895, upon decisions of the court rendered after a trial at the St. Lawrence County Court of Sessions sustaining the demurrers interposed by the defendants to indictments of a grand jury.

      Ledyarcl P. Hale, for the appellant.

      G. A. Kellogg, for the respondents.
   Putnam, J.

Section 11 of the Penal Code as in force prior to September 1, 1895, provided that “Any person who, * * * by bribery, menace or other corrupt means, directly or indirectly attempts to influence the vote of any person entitled to vote at such caucus or convention, * * * is guilty of a misdemeanor.”

By chapter 721, Laws of 1895, which took effect September first of that year, it was enacted that “ section 11 of title 5 of the Penal Code is hereby amended so as to read as follows: ” The amendment was by adding after the words “ is guilty of a misdemeanor,” the words “ punishable by imprisonment for not more than one year.”

The defendants were indicted on October 8, 1895, under the provisions of section 11 (sujora), for the alleged offense of bribery committed on the 23d day of August, 1895.

Under the law in force when the alleged offenses were committed they were punishable under the provisions of section 15 of the Penal Code by fine or imprisonment or by both. Under the amendment of 1895, in force when the indictments were found, the punishment for the alleged offenses was by imprisonment only.

It has been held that where a statute has been amended, as in this case, the portions omitted or altered are abrogated and cease to form a part of the statute from the time tire new act takes effect. (Moore v. Mausert, 49 N. Y. 332; Matter of the Estate of Prime, 136 id. 317.)

The court below held that as the statute in force when the indictments were found prescribed a different punishment from that fixed by the law in force at the time the alleged offenses were committed, the principle established in Hartung v. The People (22 N. Y. 95) applied; that the defendants could not be punished under the repealed statute in force when the crimes were alleged to have been committed nor under the new law existing when the indictments were found.

The case of Mongeon v. The People (55 N. Y. 613), cited by the appellant’s counsel, cannot be held to sustain his contention. The effect of that decision was not to change the rule established in Hartwig v. The People {supra), but rather to reaffirm the same doctrine. In the Mongeon case the'repealing statute referred to was, by its terms, applicable only to those who should thereafter commit the prohibited offense. In his opinion Allen, J., states that if the repealing act had been general in its terms, and had not been restricted to offenses thereafter eommittecl, it might have operated as a repeal of the old law as applicable to offenses committed prior to the repealing act, and he notices the distinction between a repeal by an amendment to a prior law, as in the Ilartung case and also in this case, and a repeal effected by a new statute applicable by its terms to future offenses.

"We pre. called upon to determine wherher, in this case, the repealing act in question had the effect of abrogating section II of the Penal Code, as far as it is applicable to offenses committed before such' act took effect, or whether the amended section should be deemed to relate only to future offenses, leaving section II, as before the amendment, to apply to acts done before the repealing law took effect. The question is as to the intent of the Legislature in enacting the amendment in question. (Smith v. The People, 47 N. Y. 330-338.)

Chapter 121 of the Laws of 1895, which amended section II of the Penal Code, was enacted by the Legislature May 23, 1895, and, as we have seen, went into effect on September first of that year. It is. difficult to believe that the Legislature in fact intended by that act to relieve all persons from punishment doing acts in violation of the provisions of section 11, as then in force, both before and after the passage of the amendatory act, unless indicted and tried before September 1, 1895. It is proper to bear in mind that the amendment effected by chapter 721 (supra) was of a section of a Code which provided that nothing contained in any provision of this Code applies to an offense committed or other act done at any time before this Code takes effect. Such an offense must be punished according to, and such act must be governed by, the provisions of law existing when it is done or committed in the same manner as if this Code had not been passed.” (Penal Code, § 719.)

It is held in Smith v. The People (supra, 339) that on the question of the intent of the Legislature in enacting a statute,- acts in pari materia passed before or after, and contemporaneous legislation, although not precisely in pari materia, may be considered. So I think, in this case, the fact that the repeal in question was effected by an amendment of a Code containing the above provision may be properly considered. Chapter 721 (supra) had the effect of repealing to a certain extent section 41 (supra). The amended section created by the new statute of 1895 was incorporated into a Code which provided that nothing contained in any provision of this Code applies to an offense committed * * * before this Code takes effect.” Can the Legislature, in 1895, be deemed to have intended to apply this provision to the new section incorporated into and made a part of the Penal Code by chapter 7-21 (si/pra)?

Our attention is called to the provisions of chapter 677, Laws of 1892, known as “ the Statutory Construction Law.” Section 1 is as follows: “ This chapter shall he known as the statutory construction law, and is applicable to every statute, unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” Section 31 of the same act provides that “ the repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if. such repeal had not been effected.”

The Legislature, therefore, by the act of 1892, laid down a rule of statutory constraction applicable to all future statutes. The act did not attempt to interfere in any manner with future legislation, but simply prescribed a rule of construction applicable when not inconsistent with the general object of the subsequent statute, or the context of the language construed or other provision of the repealing law indicating a different intent. I think the act of 1892 may be properly considered on the question of the intent of the Legislature of 1895 iu amending section 41 of the Penal Code. The predecessor of that Legislature had, in 1892, enacted that the repeal of a statute should not affect the liability to punishment for a crime committed before the repealing act takes effect, but that such crimes might be punished as if the repeal had not been effected. The act of 1892 was not binding upon the Legislature of 1895. That Legislature could give any repealing act such force and effect as it desired. But in the absence of anything in the statute indicating a contrary intent, I think the Legislature in the amendatory act of 1895 should be deemed to have intended that statute to have the force and effect as provided in the rule adopted by it in 1892.

It was held in the Matter of Howe (48 Hun, 235; 112 N. Y. 100) that the act of 1828, which provides that a law passed by the Legislature, unless a different time is prescribed therein, shall take effect on and not before twenty days after its final passage, as certified by the Secretary of State, controls future legislation. In that case the act considered provided “ after the passage of this act all property which shall pass by will,” etc. The act was passed June 10, 1885. It was held that it did not take effect until June thirtieth. Had it not been for the statute of 1828, the act considered in the case cited would have taken effect on the .date of its passage. (1 Kent’s Com. 451, 454.)

The question in the case cited was as to the intent of the Legislature, in 1885, in enacting the law under consideration. It was held that the court would not presume an intent to change the rule adopted by the Legislature in 1828, unless the legislative intent to do so was expressed in unambiguous language.

The above authority shows that a Legislature may adopt a rule that will affect future legislation. So, I see no reason to doubt that it may provide as to when a repealing statute shall take effect, when such statute does not indicate a contrary intent. The Legislature in 1892 adopted a rule of construction yet in force. In 1895 it passed a repealing statute. The question is as to the legislative intent. I think the Legislature must be deemed to have intended the act of 1895 to be subject to the rule of construction it had enacted in 1892.

The learned counsel for the respondents calls our attention to the remark of Allen, J., in Mongeon v. The People (supra), that the Legislature could not declare in advance the intent of subsequent Legislatures or the effect of subsequent legislation upon existing statutes. The remark quoted was entirely ohiter. The court held in that case that the act of December 10, 1828, related solely to the acts repealed by it and the effect of the Revised Statutes then adopted upon the proceedings under the statute so repealed. In other words, that the language of the act of 1828 did. not apply to the statute under consideration in that case. It was also held in Wiles Laundering Co. v. Hahlo & Others (105 N. Y. 234-245) that the provisions of the act of 1828 relate only to the acts repealed by that statute and have no effect on subsequent legislation. Hence, as the act of 1828 did not relate to the statute construed in the Mongeon case, the remark above referred to of the distinguished judge who delivered the opinion of the court above quoted merely expressed his opinion. An examination of the act of 1828 will show the distinction between that statute and the one under consideration. The act of 1892, by its terms, is made applicable to all future statutes.

It will be seen from the opinion of Andrews, J., in Lazarus v. M. E. R. Co. (145 N. Y. 581) that, while holding that the general rule prescribed in the “ Statutory Construction Law ” was not applicable to a law changing the practice in an action, he assumed that such rule in a proper case would operate upon legislation which would otherwise be retrospective.

I conclude, therefore (although with some doubt), that the Legislature, in enacting chapter 721 of the Laws of 1895 acted with reference to the act of 1892, in which it had laid down a rule for the construction of statutes, and cannot be deemed to have intended that the amendment of section 41 of the Penal Code should apply to offenses committed before the act took effect.

The judgments should be reversed and the demurrers overruled.

Herrick, J., concurred; Mayham, P. J., concurred in result.

Judgments reversed and the demurrers overruled.


author: Herrick, J.:

text:
    The People of the State of New York ex rel. Parke, Davis & Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.

      Tax — a foreign manufacturing corporation is not upon the footing of domestic corporations— not a “ citizen” — corporate rights are special privileges — a State map exclude a foreign corporation — it may impose a tax on its business — when such business is not interstate commerce — what constitutes “ doing business” in the State of New York.

    The provisions of section 3 of article 4 of the Constitution of the United States, that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” afford no basis for a claim by a foreign manufacturing company that it should be permitted to do business in the State of New York upon the same footing and with the same exemptions as a domestic corporation wholly engaged in manufacturing within the State of ■ New York.
    The right of citizens to associate themselves together and to do business as a corporation is not a natural or inherent right, but is a special privilege granted by the sovereign power, and a privilege so granted cannot be exercised in a sovereignty other than that granting it, except through the principle of comity.
    Corporations are not “citizens” within the meaning of the clause of the United States Constitution referred to, and the right of a State to exclude from it foreign corporations is well settled.
    A State may impose upon a foreign corporation, dependent for its right to do business upon the assent of the State, such reasonable terms and conditions as it deems proper.
    The imposition of a tax upon the privilege granted to a foreign corporation of doing business in the State of New York, measured by the amount of the capital employed in such business within the State of New York, is entirely within the power of the State.
    Where a foreign corporation establishes a place for the sale of its goods within the State of New York, pays rent for the premises, hires and employs agents and employees to conduct its business, and sells its product from such place of business, it transacts business within the State of New York.
    A business so conducted does not constitute interstate commerce so as to exempt the corporation from a tax upon its business.
    Certiorari issued out of tbe Supreme Court and attested on the 12th day of October, 1895, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings and accounts and all the evidence submitted to him in the matter of the taxes dne and payable by the relator.

      James McKeen, for the relator.

      T. E. Hcmcock, Attorney-General, and G. D. B. Hasbrouek, Deputy Attorney-General, for the respondent.
   Herrick, J.:

This is a proceeding to review by certiorari the decision of the Comptroller of the State in assessing and levying a corporation tax upon the relator.

The relator is incorporated for manufacturing purposes under the laws of the State of Michigan, and is engaged in the business of manufacturing preparations for pharmacists and chemists. Such manufacture consists in the preparation of chemical compounds and pharmacists’ preparations, by taking the crude materials and by various processes producing compounds and preparations in a concentrated form, convenient for using for medicines, such as fruit extracts and solid extracts. The factory is situated in the city of Detroit, Mich.

Prior to the years for which the relator has been taxed by the Comptroller the relator shipped its products in unbroken packages to a wholesale drug concern in the city of New' York, which sold the same upon commission. The house to which it consigned its goods did not give its exclusive attention to the sale of relator’s merchandise, but was a general dealer. Por the purpose of having exclusive attention given to its line of goods the relator changed its method of doing business, and selected a person named Clay, to whom it consigned its products. There is a debit and credit account between the relator and Clay, of the goods received by him, and of the amount sold. He remits the amount realized from sales made, and receives from it a stated salary; he is not paid by a commission upon goods sold; a stock of the relator’s products is always kept on hand by him; stores are leased and clerks employed at the relator’s expense. Such expense ranged from $102,000- in the year 1890 to $112,000 in the year 1894, which includes salaries of employees, rentals, insurance and repairs.

The orders received in New York city and its immediate vicinity are supplied from this store, or headquarters, in New York city. Orders received in what are known as the country districts, that is, in places at considerable distance from New York city, are. filled by transmitting such orders to the home establishment at Detroit, Mich., and the goods are shipped direct from the factory there to the persons ordering them.

The stock carried in thestore in New York city is of the average amount of $50,000. Mr. Olay also purchases crude drugs in Europe, which he imports to this country, through the port of New York. A portion of such importations are sent to the home establishment at Detroit, and another portion is sold from the New York store. Purchases of crude drugs are also made by him in New York; some are shipped to Detroit, and some are sold in New York city.

These goods are purchased upon the credit of the relator; it invests no cash in their purchase.

It is contended by the relator that Mr. Clay is not its agent; that he is carrying on an independent business in its drugs, and stands in the same relation to it as any merchant in such city purchasing its drugs, or a commission merchant to whom it should consign goods to be sold upon commission, and that, therefore, it should not be taxed as a corporation doing business in this State.

Without entering into any discussion as to what constitutes the relation of principal and agent, it seems to me very clear that Mr. Clay is in fact the agent of the relator. The rent of the establishment from which its drugs are sold in New York city is paid by the relator; it pays the insurance, taxes and repairs; it pays the salaries of the various employees engaged in conducting the business there.

It keeps a stock of its goods to a large amount at the store in New York city. Charging the goods to him, and keeping a debit and credit account between itself and Clay, is simply a convenient way of keeping an account of its transactions with its New York city branch. That is its distributing agency in the State of New York.

The goods that are purchased by Mr. Clay in Europe are purchased upon its credit. The entire proceeds of the sales in New York city are transmitted by Clay to the relator; he is paid a stated compensation, which is not dependent upon or measured by the amount of the sales or of the profits. • lie appears to be simply its representative, managing and conducting its business in the city of New York for and on its behalf.

But relator further contends that, assuming that Olay is its agent, it is carrying, on a manufacturing business; that the sale of its products are a necessary incident to the manufacturing business, and that if it was incorporated under the laws of the State of New York, and doing business here, it would, at least to the extent of the products of its own manufacture, be exempt from taxation within the case of The People ex rel. Tiffany & Co. v. Campbell (144 N. Y. 166), and at most only be taxable upon the business that it transacts in goods other than those manufactured by itself ; audit claims that under article 4, section 2, of the Constitution of the United States, providing that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” it should be permitted to do business upon the same footing as domestic corporations wholly engaged in manufacturing, and, if taxed at all, should only be taxed upon that business which is carried on by it in excess of its corporate powers, as was done in the Tiffany case. .

We do not think that this last contention can prevail.

The right of citizens to associate themselves together, and do business as a corporation, is not a natural or inherent right, but is a special privilege granted by the sovereign power; and a privilege so granted cannot be exercised in a sovereignty other than that granting it, except by comity; to hold otherwise would extend the power of such sovereignty beyond its territory, and give to its laws extra-territorial force and effect.

Again, corporations are not citizens within the meaning of that clause of the Constitution relied upon. “ The privileges and immunities secured to citizens of each State in the several States by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their Constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges -which they confer must, therefore, be enjoyed at home, unless the assent of other States to their enjoyment therein be given.” (Paul v. Virginia, 75 U. S. 168; People v. Imlay, 20 Barb. 68-80.)

The right of the State to exclude foreign corporations has been repeatedly adjudicated upon, and, is well settled. (People v. Fire Association of Phila., 92 N. Y. 311.)

The right of a corporation incorporated in a foreign State to do business in this State, being dependent upon the assent of this State? this state may impose such reasonable terms and conditions upon such assent as it deems proper. It is unnecessary to cite authorities to show that a tax upon a foreign corporation for the privilege of doing business here, measured by the amount of its capital stock employed in such business, within this State, is one entirely within its power. That establishing a place for the sale of its goods within this State, paying rent therefor, hiring and employing agents and employees to conduct such business, selling its products from such place, is transacting business within this State, seems to me can admit of no question. That a business so conducted and carried on is not interstate commerce, which will prevent the corporation carrying it on from being taxed, has been held in the case of The People ex rel. Southern Cotton Oil Co. v. Wemple (131 N. Y. 61).

The writ of certiorari should, therefore, be quashed and the decision of the Comptroller affirmed, with fifty dollars costs and disbursements.

Mayiiam, P. J., and Putnam, J., concurred.

Writ of certiorari quashed, decision of Comptroller affirmed, with fifty dollars costs and disbursements.


author: Brown, P. J.:

text:
    Matilda G. Johnson, Respondent, v. William H. Cochrane and Others, Appellants, Impleaded with Elizabeth Stocking and Others. No. 1.

      Receiver — cannot be appointed in an action to determine the validity of a will — effect of the judgment in such an action.

    Where an action is brought in the Supreme Court under section 2653a of the Code of Civil Procedure to determine the validity of a will, the issue is confined to the question whether the writing produced is or is not the last will of the testator and the subject of the action is the validity of the will.
    The court has no power in such an action to appoint, by virtue of section 713 of the Code of Civil Procedure, a receiver, after final judgment, to preserve the real property of the decedent during the pendency of an appeal.
    A court of equity possesses the power, independent of statute, to appoint a receiver to preserve property pendente lite, but such power can be exercised only in cases where the property is the direct subject of the action and where the judgment to be granted will act upon the specific property.
    While the judgment in such an action is conclusive as to the title of real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized, and the plaintiff cannot, under any process that can be issued to enforce the judgment, obtain possession of the real estate in question.
    The effect of a judgment adjudging a will to be void is to leave the parties in the situation which they would have occupied had the testator died intestate.
    Appeal by tbe defendants, William H. Cochrane and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of August, 1895, appointing a “ receiver o.f the rents, issues and profits of the premises No. 973 Bergen street, in the city of Brooklyn, pending the appeal of this action and until the same is fully heard and determined upon said appeal.”

      Hugo Hirsh, for the appellants.

      M. L. Towns, for the respondent.
   Brown, P. J.:

This action was brought under chapter 591 of the Laws of 1892, known as section 2653a of the Code of Civil Procedure. Judgment was entered in favor of the plaintiff in the clerk’s office of Kings county on May 21, 1894.

The purpose of the action was to determine the validity of the last will and testament of Joseph H. Hamilton.

The statute provides that “ the issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will * * * of the testator.”

The judgment entered followed the language of the statute and decided that the writing produced as the last will and testament of Joseph H. Hamilton, deceased, and admitted to probate by the surrogate was not the last will and testament of said Joseph H. Hamilton, and adjudged said probate and all proceedings had thereon to be invalid, null and void.

The order appealed from cannot be sustained. Section 713 of the Code of Civil Procedure authorizes the appointment of a receiver after final judgment to preserve the property which is the subject of the action during the pendency of an appeal. But the property of which the receiver was appointed, and which is described in the order as No. 975 Bergen street, was not the subject of the action. The subject of the action was the validity of the will of Joseph H. Hamilton, and, while the judgment is conclusive as to the title of the real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized, and the plaintiff could not, under any process that could be issued to enforce the judgment, obtain possession of the real estate in question. The effect of the judgment upon the rights of the parties is to leave them in the same situation they would have occupied if the decedent had died intestate. The title to the property passes to the heirs at law, and possession must be recovered in the proper form of action for the recovery of the possession of real estate. Neither can the land be sold nnder the judgment in this action and the proceeds distributed. The statute does not authorize such a judgment and none has been given.

A court of equity undoubtedly possesses the power, independent of statute, to appoint a receiver to preserve property pendente lite. But such power can be exercised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property. Probably all eases that could arise where an appointment of a receiver by a court of equity would be proper are now included in the provisions of the Code. This is not a proper case for such an appointment, and the order must be reversed, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Order appointing a receiver reversed, with ten dollars costs and disbursements.


author: Brown, T. J.:

text:
    Matilda G. Johnson, Respondent, v. William H. Cochrane and Others, Appellants, Impleaded with Elizabeth Stocking and Others. No. 2.

      Action to determine the validity of a will— the complaint need not contain matters relative to procedure which are not jurisdictional — conversation with a deceased person — opinions of laymen upon the capacity of a testator — rule as to the effect on appeal of testimony improperly admitted.

    An action liaving been brought in the Supreme Court under the provisions of section 2653a of the Code of Civil Procedure to try the question -whether a •writing produced was or was not the last will of Joseph II. Hamilton, the defendants moved, before the opening of the case, to dismiss the complaint upon the ground that the plaintiff had failed to comply with the provisions of said section, in that the complaint had not been filed with the clerk of the court, and that said clerk had not certified to the clerk of the Surrogate’s Court the fact that the action had been commenced, and that the surrogate had not transmitted to the Supreme Court a copy of the will and the other papers required to be transmitted by said section. There was nothing before the trial court to show that the statute had not been complied with, and the papers enumerated were immediately upon the denial of the motion put in evidence by the., defendants.
    Held, that the motion to dismiss the complaint was properly denied;
    That none of the acts in question were jurisdictional, nor was it required that they be stated in the complaint;
    That if the statute had not been complied with in any particular, a motion should have been made at the Special Term to have the omission corrected.
    A party' to an action, who, if a will shall be held valid, will acquire under it an inchoate right of dower in real estate devised by the will to her husband, and who has interposed an answer setting up her interest, is precluded by section 829 of the Code of Civil Procedure from testifying to a conversation had with the testator.
    A layman will not bo permitted to give an opinion as to the mental capacity of a testator, nor can ho state whether the testator was rational or irrational, but he may state acts and conversations of which he has personal knowledge and may then state his opinion as to whether such acts and conversations were rational or irrational, or those of a rational or irrational person.

      It seems, that a lay witness should not be permitted to answer a question relative to a testator expressed in this form: “Did you ever see him act rationally from August until the last time you saw him ? ”
    An appellate court will judge for itself as to the materiality of testimony improperly admitted, and if it appears that the result would have been the same if the testimony had been excluded, the error arising from this admission furnishes no ground for the reversal of the judgment.
    Appeal by tlie defendants, William IT. Cochrane and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 19th day of May, 1891, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said cleric’s office on the 1st day of June, 1891, denying the defendants’ motion for a new trial made upon the minutes.

      Hugo Hirsh, for the appellants.

      M. L. Towns, for the respondent.
   Brown, T. J.:

Joseph II. Hamilton died in the city of Brooklyn on November 11, 1892, leaving an alleged last will and testament bearing date October 29, 1892, and leaving surviving him as his heirs at law the plaintiff and the defendants Elizabeth Stocking, Mary II. Johnson, Lewis Johnson and William II. Cochrane. By his will all the estate o£ said deceased, with the exception of $100, was given to the defendant William II. Oochrane.

The plaintiff and the defendant Mary II. Joliuson objected to the probate of the will on the ground that the testator had not sufficient mental capacity to make and execute the same, and after a trial the surrogate adjudged the will to be valid, and it was admitted to probate on March 1, 1893.

Thereafter this action was commenced under section 2653a of the Code of Civil Procedure (Chap. 591 of the Laws of 1892), and after a trial at the Circuit the jury found that the paper admitted to probate was not the will of said deceased, and from the judgment entered upon that verdict certain of the defendants have appealed.

We are of the opinion that the verdict of the jury has ample support in the testimony. It ajopeared that the testator had had two attacks of paralysis prior to the execution of the will. The last was in March, 1892, and from that date until his death his physical and mental condition deteriorated materially. On November second or third he became violently insane, ana remained so until his death on November eleventh.

It would serve no useful pmrpose to review the great amount .of testimony contained in the record submitted to the court, and it is sufficient to say upon the merits of the case that the evidence permitted the conclusion reached by the jury, and we find no just or proper ground to interfere with the verdict.

Our attention has been called by the appellants to numerous exceptions appearing in the record, which it is claimed are fatal to the judgment and require its reversal.

Before the opening of the case the defendants moved to dismiss the complaint upon the ground that the plaintiff had failed to comply with the provisions of section 2653a of the Code of Civil Procedure, in that the complaint had not been filed with the clerk of the court, and that the said clerk had not certified to the clerk of the Surrogate’s Court the fact that this action had been commenced, and that the surrogate had not transmitted to the Supreme Court a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate. This motion does not appear to have been made upon an affidavit or certificate of either the clerk of the Supreme Court or the clerk of the Surrogate’s Court, and there was nothing before the trial court to show that the statute had not been complied with.

The record before us shows that all the papers enumerated in the motion, which the statute required should be transmitted by the surrogate to the Supreme Court, were immediately, upon denial of the motion, put in evidence by the defendants. None of these acts were, however, jurisdictional, and none of them were required to he set forth in the complaint. The motion was not properly made at the trial and had no relation to any of the issues raised by the pleadings. If the statute had not been complied with the motion should have been addressed to the Special Term to have the omission corrected. There was no ground for the dismissal of the complaint, and the motion was properly denied.

Minnie G. Cochrane, the wife of the defendant William H. Cochrane, was called as a witness and asked to testify to a conversation had with the testator in the month of October preceding his death. An objection that this evidence was inadmissible under section 829 of the Code of Civil Procedure was sustained, to which the defendants excepted. This ruling was correct. The witness was a party to the action, and if the will was valid acquired under it an inchoate right of dower in the real estate therein devised to her husband. She had appeared in the action and served an answer sotting up her interest in the land. Iler testimony was, therefore, inadmissible under the 829th section of the Code of Civil Procedure, which declares that a party to an action shall not be examined as a witness in his or her own behalf, against a person deriving title through or under a deceased person, concerning a personal transaction or communication, between the witness and such deceased person. The appellants cite the case of Eisenlord v. Clum (126 N. Y. 552) to sustain their contention that this testimony was admissible. But in that case the witness was not a party to the action, and the objection to the admission of her testimony was made upon the ground that she was interested in the event. The court held that a person was not “ interested in the event,” unless he would gain or lose by the result of the action, or liad “an interest in the record for the purpose of evidence; ” that the witness was not, within that rule, an interested person, and, therefore, that her testimony was admissible. The case is not an authority upon the question here presented, as Mrs. Cochrane was a party to the action offering to testify in her own behalf and had a direct and certain interest in the result of the suit.

There were many lay witnesses called by the plaintiff who, after testifying to conversations with, and acts of the deceased, were permitted, against the defendants’ objections, to characterize such acts and conversations as irrational. The record presents very many exceptions to rulings upon this class of testimony, and they form the basis of a large part of the argument made by the appellants.

The rule as to this class of testimony is well settled. A layman is not to be permitted to give an opinion as to the mental capacity of a testator, nor to say whether he was rational or irrational. But he may state acts and conversations of which he has personal knowledge, and then he may be permitted to state his opinion as to whether such acts and conversations were rational or irrational, or those of a rational or irrational person. (Paine v. Aldrich, 133 N. Y. 547; Holcomb v. Holcomb, 95 id. 316.)

We are of the opinion that nearly all of the rulings of the court on this subject were kept well within this rule, but in a few instances witnesses were permitted to answer questions which were probably objectionable.

The ans'wer to the question, “ Did you ever see him act rationally from August until the last time you saw him ? ” should probably have been excluded. There are others to which the objections might possibly have been sustained, but we do not deem it necessary to refer to them. It does not follow that the judgment should be reversed because some testimony was admitted which should have been excluded. In order to warrant a reversal the court must be satisfied, upon an examination of the whole case, that the appellant was prejudiced.

An appellate court will judge for itself as to the materiality of testimony improperly admitted, and if it appears that the result would have been the same if the testimony had been excluded, the error arising from its admission furnishes no ground for the reversal of the judgment. (People v. Gonzalez, 35 N. Y. 59; McGean v. Manhattan Railway Co., 117 id. 219.)

There is abundant testimony in the record to sustain the finding of the jury, even if the testimony referred to be excluded from the case, and we think that it is impossible that the jury was influenced by the testimony of witnesses, which characterized in a general way the conduct of the testator as irrational. Nearly all the testimony in the case appears to have been read to the jury from the record of tbe trial in the Sim’ogate’s Court. Tbe statute permits this to be done where the witnesses are out of the jurisdiction of the court, or dead or have become incompetent to testify subsequent to the px-obate of. the will. The case does not show upon what ground this testimony was allowed to he read, hut so far as we have observed only three or four witnesses were called to testify at tlie trial. We have assumed that the testimony was read upon stipulation, and that the objections and exceptions to such testimony were taken at the trial now under review, but after a careful examination of the whole case, we are of the opinion that none of them require a reversal of tlie judgment.

The judgment and order must be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment and order denying the motion for a new trial affirmed, with costs.


author: .Brown, P. J.:

text:
    George H. Heath, Respondent, v. New York Building Loan Banking Company, Appellant.

      Jfeio trial — when the motion, if based upon an error of fact or law, must be made — ■ ■relief for surprise or mistake —lohen n judgment is final.

    A motion for a new trial, made upon errors and upon exceptions taken at the trial, upon the facts, and upon the ground that there was no evidence to sustain findings in favor of the detendant, must be anude before the expiration of t-ho time within which an appeal can ho taken from tlie judgment, that is to say, within thirty days after service upon tlie attorney for the appellant of a copy of the judgment entered.

      Semble, that where section 724 of the Code of Civil Procedure, providing for the relief of a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, is applicable to a case, the court cannot grant relief where the motion is made more than a year after receipt by the moving party of notice of the judgment.
    AYhere a judgment in favor of the defendant allows the plaintiff to pay certain amounts stated within six months and thereby obtain a reconveyance of property, but directs that, upon his failure to make such payments, the premises shall he sold and the plaintiff he foreclosed of all his rights in the property, and that the proceeds of the sale he brought into court and he applied in the usual manner, the judgment is final as between the parties, and contains every provision essential to an execution of the decision of the court, except a direction as to the manner of the sale of the property.
    Appeal by tlie defendant, tlie New York Building Loan Banking Company, from two orders of tlie Supreme Court, made at tlie Kings County Special Term and entered in tlie office pf the clerk of the county of Kings on the 25th day of July, 1895, denying the defendant’s motion for an extra allowance, for a sale of the premises which are the subject of the action under the judgment entered therein, and for the appointment of a receiver, and granting the plaintiff’s motion for a new trial.

      William II Hamilton, for the appellant.

      Hector M. HitcMngs, for the respondent.
   .Brown, P. J.:

This action was before this court at the February term of the present year upon an appeal from an order which resettled the findings of the court and modified the judgment which had been entered.

The facts are sufficiently stated in the opinion then delivered and in the opinion delivered upon the appeal from our order to the Court of Appeals. (Heath v. N. Y. Bldg. Loan Banking Co., 84 Hun, 302; 146 N. Y. 260.)

After the decision of the Court of Appeals the defendant moved at Special Term for an order directing (1) a sale of the premises pursuant to the provisions of the judgment, (2) an extra allowance, (3) the appointment of a receiver of tlie rents of the property, pending the advertisement of the sale. At the same time the plaintiff moved for a new trial. The orders appealed from denied the defendant’s motion and granted a new trial.

We are of the opinion that the orders cannot be sustained.

The judgment in the action was dated June 5, 1894, and was duly entered in the clerk’s office on June 8, 1894, and a copy thereof and notice of entry was served on June 11, 1894.

A motion for a new trial, founded upon an allegation of error in a finding of fact or ruling upon the law made by the judge upon the trial, must be made before the expiration of the time within which an appeal can be taken from the judgment. (Code Civ. Proc. § 1002.)

An appeal from a final or interlocutory judgment must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment apjiealed from. (Code Civ. Proc. § 1351.)

A party may be relieved from a j udgment taken against him through his mistake, inadvertence, surprise or excusable neglect within one year after notice thereof. (Code Civ. Proc. § 724.)

The order to show cause, upon which the plaintiff’s motion was made, was dated June 15, 1895, and the motion was made upon the errors and exceptions taken upon the trial, and upon the evidence and the weight of evidence, and the fact that there was no evidence to sustain the findings in favor of the defendant, and upon the fact that the decision in favor of the defendant was contrary to equity, to good conscience and to law.

Section 724 of the Code of Civil Procedure was not applicable to the case, but, if it could be deemed so, the motion having been made after the expiration of a year from the receipt of notice of the entry of the judgment, the court was without power to entertain it. The time to appeal from the judgment had expired long before the order to show cause was served, and the court was also without power to entertain the application on the grounds stated in the moving papers.

It was claimed upon the argument that the judgment which had been entered in the action was interlocutory, and that, as defendant’s application was for final judgment, the plaintiff would have had the right to appeal therefrom had its motion been granted, and, therefore, section 1002 of the Code of Civil Procedure did not apply.

Ye think the judgment was final. It settled and adjudicated every question at issue between the parties. It allowed plaintiff to pay certain specified amounts within six months and obtain a reconveyance of the property; but, upon failure to make such payments, the premises were to be sold and the plaintiff foreclosed of his rights therein and the proceeds of the sale brought into court and applied in the usual manner. It contained every provision essential to an execution of the decision of the court except to direct the manner of sale. There was no question at issue between the parties left to be decided. It was essential that the court should direct how and by what office!’ the sale of the property should be made, and the defendant’s application therefor should have been granted.

The orders must be reversed, with ten dollars costs and disburse- . ments, with leave to the defendant to renew its motion.

Pratt and Dykman, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, with leave to defendant to renew its motion at Special Term.


author: Brown, P. J. :

text:
    Elliott J. Smith, Appellant, v. William Nicoll, Respondent.

      Brolc&r — when commissions upon the sale of real estate are earned — justifiable statement by the vendor to the purchaser.

    A broker is not entitled to commissions upon the sale of real estate unless he procures a purchaser ready and willing to buy the land upon the terms of his principal, the owner.
    In an action brought by a broker to recover commissions, agreed to be paid upon the sale of certain islands, it appeared that one Taylor, through his agent Treadwell, offered to buy the property at §160 per acre; that the plaintiff reported the offer to the owner and told him that the brokerage would be 18,000, and that, upon a basis of 220 acres, the sale would not the defendant §27,200; that the proposed purchaser desired that his agent TreadwelJ should have one-half of the commissions and that Treadwell was to have §4,000. The defendant assented to this and signed a contract for the sale, but immediately wrote to the proposed purchaser and told him the facts as to the proposed division of the commissions; the proposed purchaser, objecting to the arrangement by which his own agent was to receive one-half of the commissions, refused to sign a contract for the purchase of the property and the sale was abandoned.

      Held, that the plaintiff had not procured a purchaser upon the terms of the defendant and was not entitled to commissions;
    That the act of the defendant, in informing the proposed purchaser of the large commission demanded and of the fact that the purchaser’s agent was to share equally in it, was not an unlawful interference on the defendant’s part.
    Appeal by tlie plaintiff, Elliott J. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tlie clerk of the county of Suffolk on the 24th day of April, 1895, upon the dismissal of the complaint, directed by the court after a trial at the Suffolk Circuit before the coart and a jury.

      George II. Bruce, for tlie appellant.

      Timothy M. Griffing, for the respondent.
   Brown, P. J. :

We are of tire opinion that this case was properly disposed of at the Circuit.

The action was brought to recover commissions agreed to be paid upon a sale of real estate The parties do not differ about the rule of law applicable to the case, and the only question is whether the plaintiff procured for the defendant a purchaser ready and willing to purchase the land upon his terms. The plaintiff testified that defendant asked him to find a purchaser for his farm. That thereafter he had negotiations with Mr. George C. Taylor with the result that on October 22,1894, Mr. Taylor, through one Treadwell, made an offer •of $160 per acre for three islands in Great South Bay called the Fire Islands. The plaintiff thereupon called on the defendant and reported the offer to him, and told him that the brokerage would be $8,000, and that upon the basis of 220 acres the sale would net him $27,200 ; that Mr. Taylor desired his own agent, Treadwell, to have •one-half of the commissions, and that Treadwell was to have $4,000. Defendant orally accepted the offer, and a contract having been prepared expressing the terms of the sale, it was signed by defendant and delivered to the plaintiff to procure Taylor’s signature. Plaintiff delivered the contract to Taylor, but before he signed it he received from the defendant a letter, of which the following is ■a copy:

October Tith, 1894.

“ George O. Tatlob, Esq., Islip, L. I.:

“ Dear Sir — I had a call a few days ago from Messrs. Elliott J., •and Eugene B. Smith, who came to make a proposition to me regarding the sale of the islands in the Great South Bay. They informed me that you were willing to purchase this property at $160 per -acre, but demanded for themselves and Mr, Treadwell a commission of $8,000, which, they said, was to be divided between them. They -assured me that you knew of and approved this arrangement and that the sale could not be made on any other basis.' I, therefore, prepared and signed a contract and gave it to Smith.

“I do not wish you to sign the contract without being fully aware of the disposition to be made of the purchase money and take this means to assure myself that you are informed of the exact facts in the case. If you see nothing objectionable to the arrangement I have nothing to say, as the contract is perfectly satisfactory to me and I have no wish to withdraw from it.

“ I remain very truly yours,

“WM. NICOLL.”

Taylor was called as a witness by the plaintiff, and testified upon his cross-examination that he knew nothing about the arrangement that Treadwell should have half of the commission; that he thought it was an outrageous piece of business, and that after receiving defendant’s letter he had declined to have anything further to do with the matter.

Upon these facts it is clear that the plaintiff did not procure a purchaser on the defendant’s terms. The terms of the sale were for the first time fixed by the written contract, and it was essential to plaintiff’s right to recover that he should have procured Mr. Taylor’s assent to. that contract or proved that he was prevented from so doing by the defendant.

It was not an unlawful interference for the defendant to have written the letter I have quoted. No terms or conditions were by that letter attached to the sale except such as were expressed in the written contract, and defendant expressed his satisfaction with the contract, and that he had no desire to withdraw from it. In our judgment it was eminently proper that Mr. Taylor should have been informed of the extraordinary commission which the agents of the parties demanded, and of the large sum which his agent Treadwell expected to receive from the sale, and the defendant performed a commendable act in giving him that information. If it had the effect to prevent the sale the plaintiff has no legal cause of complaint. The condition was one created by himself and one which both principals were entitled to know.

The júdgment must be affirmed, with costs.

Pratt and Dvkman, JJ., concurred.

Judgment affirmed, with costs.