
    The People of the State of New York ex rel. The Edison Light and Power Installation Company, Relator, v. Otto Kelsey, Comptroller of the State of New York, Respondent.
    
      ^License and franchise tax — a foreign corporation whose entire assets ,are invested in the stock of a New York corporation and, whose entire income is derived therefrom is not subject thereto.
    
    A foreign corporation, whose entire assets are invested in the stock of á corporation organized under the laws of the State of'New York and doing business in the State of New York, and whose sole income is derived from the dividends which it receives upon the stock of the New York corporation held by it, is not engaged in doing business in the State of New York and is, therefore, not •subject to a license tax under section 181 of the Tax Law, or to a franchise tax under section 182 of the Tax Law.
    Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1904, directed to Otto Kelsey, 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 his proceedings had in assessing a license and franchise tax against the relator for the year 1903.
    • The relator is a foreign corporation, organized under the laws of the State of New Jersey. By the record it appears that it has an authorized capital stock of $3,000,000. Of this $1,216,400 is paid up. All of this stock is invested in the stock of the Empire City Subway Company, a domestic corporation Organized and doing business within the State of New York. The Comptroller has stated a license tax of $920.50 under section 181'of the Tax' Law (La'ws of" 1896, chap. 908, as amd. by Laws of 1901, chap. 558), and a franchise tax of $2,098.29 under section 182 of' the Tax Law (as amd.. supra) for the year ending October 31, 1903. Upon application 'for a resettlement and rehearing thé Comptroller declined to modify the statement of tax. To review this determination this writ of certiorari has been issued. . . ' '
    
      Samuel A. Beardsley and Henry J. Hemmens, for the relator.
    _ John Cunneen, Attorney-General, William H. Wood, Deputy Attorney-General, for the respondent.
   Smith, J.:

In People v. American Bell Telephone Company (117 N. Y. 242) the court held that a Massachusetts Corporation with capital invested in stocks in a domestic corporation was in no sense doing business within this State, and, therefore, could not be taxed under the laws ’of the State. In People ex rel. Edison E. L. Co. v. Campbell (138 N. Y.. 543) the question arose as to the right to tax the stock of a domestic corporation which- was invested in the stocks of other corporations organized in the State. Ease, J.j writing for the court, says - “ The case of People v. American Bell Telephone Company (117 N. Y. 241) is not an authority for the comptroller in this'case. In that case the. defendant, a- foreign corporation, held stocks in various companies in this State, and it was held that it Could not be taxed under the act of 1880, on account of the investment of a portion of its capital in such companies, for the reason that it was not doing business-in this State. ' Before a foreign corporation can be taxed'under that act in this State it must, not only employ a portion of its capital in this State, but it must also be,engaged in business here. (People ex rel. American Contracting and Dredging Co. v. Wemple, supra. As to a domestic, corporation, it is sufficient to -subject it .to taxation, ■under the-act that its capital was employed within the State, and it is employed where it is kept and used .for the purposes of the corporation.” - ”

We aré referred to no case within -the State which ih any way-questions the rule of law- laid down in’ the cases cited.. All the assets of relator are invested in the stock of a domestic corporation, the Empire’ City Subway Company, and the sole income of the relator is the dividend that it receives upon that stock. I am unable-to distinguish this case from the rule laid down in the cases cited. The. Attorney-General, in support of the Comptroller’s decision, simply refers to the case of People ex rel. Commercial Cable Co. v. Morgan, (178 N. Y. 433). That case, however, was a case of a domes tic corporation, and comes directly within the rule stated in People ex rel. Edison E. L. Co. v. Campbell, cited above. It does not in any way impair the rule as laid down in the case of People v. American Bell Telephone Company (supra). It appeared in the evidence that the stock of the relator company was owned by the New York Edison Company, a New York corporation. This may be a. material fact in the assessment of the franchise of the New York Edison Company, but such ownership of relator’s stock cannot alter the rule of law applicable to foreign corporations owning stock in a. corporation organized under the laws of the State.

All concurred.

Determination of the Comptroller reversed, with fifty dollars costs and disbursements. 
      
      Laws of 1880, chap. 542, as amd.— [Rep.
     
      
       129 N. Y. 558.— [Rep.
     