
    The People of the State of New York, Appellant, v. The Holland Trust Company, Respondent.
    Third Department,
    June 29, 1910.
    Tax—franchise tax — trust company—restricting activities pursuant to oral direction of Superintendent of Banks.
    A trust company which pursuant to an oral direction of the State Superintendent of Banks, who was dissatisfied with its condition, ceased taking new deposits or accepting new trusts, but otherwise transacts all its usual business, continues to act as trustee of existing, trusts, renews paper, pays depositors and makes new loans, is exercising its franchise and is liable for á franchise tax.
    
      Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of,Albany on the 14th day of February, 1910, confirming the report Of a referee and dismissing the claim of the plaintiff for unpaid taxes.
    
      Edward R. O'Malley, Attorney-General [Irving D. Vann, Deputy, of counsel], for the appellant.
    
      Edward Russell, for the respondent.
   Kellogg, J.

The réferee has dismissed the claim of the plaintiff upon the. ground that during the years for which the taxes were imposed the trust company was not carrying on the business of a trust company in that it had been orally directed by the Superintendent of Banks that it "must receive no new deposits. The Superintendent of Banks, January 2, 1894, found the Company deficient in its balance sheet; its. assets' were short, and he was apprehensive, as. to the condition of the capital. The condition of the trust company was bad. He notified it orally that it must stop taking deposits, or he would wind it up ;■ that the examination showed the company was in a bad way, and it was a question with him whether he would wind it up or- not; that he would apply for a .receiver unless they stopped taking deposits. Its officers wanted • to avert that, and agreed that they would pay off depositors and take no new deposits. Thereafter it took no new deposits and accepted no new trusts. It, however, continued to act as trustee with reference to existing trusts, renewed paper, paid depositors and made some new loans, which were perhaps necessary in order to protect certain property or persons in whom It was financially interested; it maintained its banking office, iriade its regular reports and- performed all of its usual business with the exceptions stated until in October, 1906, receivers were appointed in proceedings for its. dissolution..

The fact that thé trust company was not doing business in. a safe way, and that the interests of the public required that it must mend its ways.or stop receiving deposits, furnishes no reason why it may continue to exercise its other functions, and then evade the payment of taxes by reason of the fact that its improper conduct of business does not permit it to receive deposits. ' The Superintendent of Banks had no legal power' to orally prohibit the company from transacting any part of its proper business. It was probably not understood by him or the company that he liad attempted to make any such prohibition. He hadsimply notified it that he would take legal action if it continued to receive deposits in its then condition. The company had the fight to go into liquidation, or to restore its • assets to a-safe condition, or to act upon'the warning of the Bank Superintendent, of to disregard the warning, and let the legal consequences follow. It elected to tfansact such business as it could in its impaired condition. It was clearly exercising its franchise as a trust company ; whatever it did was done under its franchise, and it is immaterial for the purposes of taxation how much cr how little it accomplished. (People ex rel. Fifth Ave. B. Co. v. Williams, 198 N. Y. 238.)

'The order appealed from and the determination of the referee are reversed upon the law and the facts, the referee discharged and the matter remitted to the Special Term for further consideration.'

All concurred.

Order appealed from and determination of the referee reversed upon the law and facts, referee discharged and matter remitted to the Special Term for further consideration.  