
    The People of the State of New York ex rel. Astor Trust Company and Atlantic Phosphate & Oil Corporation, Relators, v. The State Tax Commission, Respondent.
    Third Department,
    September 13, 1916.
    Mortgage — taxation of mortgage covering property within and without the State — vessels as “ tangible property ” — situs of vessels for purpose of taxation — effect of amendment of 1916 to section 260 of Tax Law — supplemental mortgage.
    The situs of vessels for the purpose of taxation at the time of recording mortgages thereon, although possibly not conclusive, has an important bearing upon whether the vessels should be considered as property within or without the State.
    Where the domicile of the owner and the port of enrollment of vessels covered by a mortgage and used off the coast of this and other States, are at the same place within this State, such place is the situs of the vessels, and they constitute “tangible property” within the State, within the intent and meaning of section 360 of the Tax Law.
    The intention of the Legislature that tangible personal property covered by a mortgage both within and without the State should be taken into account in making the apportionment of the taxable indebtedness was expressly confirmed by Laws of 1916, chapter 335, which revised section 260 of the Tax Law, by specifically stating that personal as well as real property is to be considered.
    Where portions of the real and personal property covered by a mortgage given as security for the payment of bonds, were subject to a lien which prevented the disposal of said bonds, and a second mortgage was given upon portions of said property not subject to the lien, as security for the payment of bonds, which were then exchanged for the bonds issued under the first mortgage, which was thereby discharged, the second mortgage is not a supplemental mortgage, within the meaning of section 255 of the Tax Law, but is a substituted or superseding mortgage and is subject to taxation, especially where there was no claim of exemption at the time of presenting the mortgage for record, and verified statements were filed in conformity with section 260 of the Tax Law.
    Cebtiobabi issued out of the Supreme Court and attested on the 23d day of November, 1915, directed to the State Tax Commission, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in fixing the amount of the mortgage tax upon the mortgages executed by the relator Atlantic Phosphate & Oil Corporation to the relator Astor Trust Company.
    
      White & Case [Joseph M. Hartfield and Henry D. Strack of counsel], for the relators.
    
      EgburtE. Woodbury, Attorney-General [Franklin Kennedy, Deputy Attorney-General, of counsel], for the respondent.
   Lyon, J.:

These are proceedings by certiorari to review two determinations of the State Tax Commission, apportioning the amounts of the taxes for recording two mortgages given by the relator oil corporation to the relator trust company, as trustee, in March and July, 1913; and involve the construction of sections 255 and 260 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62). There is practically no dispute as to the facts. Each mortgage was given to secure the payment of bonds of the oil corporation, to the amount of $1,500,000, and covered all the tangible real and personal property then owned by the corporation. Both relators were New York State corporations. The oil corporation owned both real and personal property in the five States of New York, Maine, Massachusetts, Rhode Island and Tennessee, of the aggregate value, exclusive of prior incumbrances, of upwards of $5,000,000. It was engaged from July first to November first, as one branch of its business, in merihadden fishing along the Atlantic coast from Maine to Florida. In connection with this industry it possessed certain vessels with their equipments, twenty-five of which were covered by the March mortgage, and twenty-three by the July mortgage. The March mortgage "was recorded April 19, 1913, and the July mortgage October 22, 1913, in the office of the clerk of Suffolk county, N. T. At the time of recording each of said mortgages the relators filed with the recording officer duplicate verified statements in alleged compliance with section 260 of the Tax Law, and paid to such clerk as the recording tax upon such mortgage the sum of fifty cents for each $100 of the $1,438,000 advanced and secured by mortgage upon property situated within this State, computed upon the basis of the proportionate net value of the mortgaged real and personal property within the State, and the total net value of the entire mortgaged property. In such statements so filed by the relators at the time of recording the March mortgage the value of the real and personal property without the State, less prior incumbrances, was given as $3,000,000; of that within the State as $772,000; and the value of floating equipment as $1,260,000. In making such tax computation as to each mortgage, the relators treated the floating equipment as tangible property without the State, and hence computed no tax upon its value. The State Tax Commission in its determination as to apportionment treated the floating equipment as tangible property within the State, and hence held that there was yet unpaid of the recording tax upwards of $3,800. This determination of the State Tax Commission, and its refusal to consider the July mortgage a supplemental mortgage, constitute the complaint of the relators upon this appeal.

Section 260 of the Tax Law, under which such determination was made, provided in part: “In determining the separate-values of the property covered by any such mortgage ’within and without the State, for the purpose of ascertaining the proportion of the principal indebtedness secured by the mortgage which is taxable under' this article, the State Board of Tax Commissioners shall consider only the value of the tangible property covered by each mortgage * *

Unquestionably the vessels were “ tangible property.” Tangible property is such property as may be seen, weighed, measured and estimated by the physical senses. (People ex rel. Cleveland & Buffalo Transit Co. v. Byrnes, 162 App. Div. 223.) It is property capable of being possessed or realized; readily apprehensible by the mind; real; substantial; evident. (Webster’s New Internat. Dict.) Even a leasehold is tangible property (People ex rel. American Ice Co. v. Tax Comrs., 153 App. Div. 532, 539; 207 N. Y. 766), as is also a mortgage upon a lease of real property. (People ex rel. Elias Brewing Co. v. Gass, 120 App. Div. 147; affd., 190 N. Y. 565.)

The relators in support of their contention that the vessels were tangible property without the State introduced evidence to the" effect that very little of the fishing in which the vessels were engaged was done within the three-mile limit, and that ninety per cent of it was done off the coasts of States other than New York; that none of the vessels were actually within the State of New York at the time the March mortgage was executed; that although fish were unloaded at Promised Land, they were also unloaded in the States of Massachusetts, Delaware and North Carolina; that twelve of these vessels were engaged exclusively in fishing outside of the State of New York, and that all the vessels wintered at Portsmouth, E. I. However, it appears that the principal office and place of business of the relator oil corporation was at Promised Land, in the county of Suffolk, N. Y.; that at the dates and also at the times of recording these mortgages, all the vessels were enrolled and licensed under the laws of the United States to carry on the fisheries, and that each of the certificates of enrollment was issued and recorded at the port of Gfreenport, district of Sag Harbor, Suffolk county, N. Y., which was designated in each certificate as the Home port.”

While perhaps not conclusive upon the question at issue, the situs of the vessels at the time of recording the mortgages has an important bearing upon whether the vessels should have been held to be property within or without the State. We may also properly look for guidance to decisions of the courts taxing vessels as property.

The legal situs of seagoing vessels for the purpose of taxation is the port where they are registered under the laws of the United States as their home port, arid this is not lost by mere absence and employment elsewhere, but is dependent upon the registration and continuance until a new situs is acquired. (People ex rel. Pacific Mail Steamship Co. v. Comrs. of Taxes, 58 N. Y. 242.)

Where a vessel was registered in a State and the corporation owning it had its business office in that State, a vessel, although plying to a point in another State, is properly taxed in the State of its registration. (Irvin v. New Orleans, St. L. & C. R. Co., 94 Ill. 105.)

Ferry boats plying between Jersey City and New York and enrolled in the-custom house in the latter cityand owned there are not taxable in the former city, not being situated there within the meaning of the statute. (State v. Haight, 30 N. J. Law [1 Vroom], 428.)

The home port of a vessel engaged in interstate commerce is its situs for taxation. (Ayer & Lord Co. v. Kentucky, 202 U. S. 409.)

Vessels engaged in foreign or interstate commerce, owned by a corporation of the State, which are registered under the laws of the United States and have the name of their home port in such State painted on their stern, have their situs for the purpose of taxation at such home port. (Yost v. Lake Erie Transp. Co., 112 Fed. Rep. 746.)

Suffolk county, N. Y., was not only the domicile of the owner, and the place of enrollment of the vessels, but the custom house at Gfreenport was the place where a mortgage upon these vessels was required to be recorded. (U. S. R. S. § 4192.) The registry of the vessels was required to be near the home of the owner. (Id. § 4141.) The evidence does not show that prior to the time of recording these mortgages the vessels had acquired an actual situs in any other State. The taxable situs of a vessel which has no permanent location within another jurisdiction is the domicile of the owner. (Southern Pacific Co. v. Kentucky, 222 U. S. 63.) The domicile of the owner, as well as the port of enrollment of the vessels, having been at a place within the State of New York, such was the situs of the vessels, and they must be held to have been tangible property within the State within the intent and meaning of section 260 of the Tax Law. This holding is in conformity with the decision of this court in the case of People ex rel. Cleveland & Buffalo Transit Co. v. Byrnes (supra). The conclusion reached in that case, that it was the intention of the Legislature that tangible personal property covered by the mortgage both within and without the State should be taken into account in making the apportionment, was confirmed by the action of the Legislature of the present year (Laws of 1916, chap. 335), in revising the language of section 260 so as to remove the ambiguity which existed in the previous statute, by specifically stating that personal as well as real property is to be considered. The relators contend, however, that such decision cannot apply to the July mortgage for the reason that such mortgage was a supplemental mortgage and hence exempt from taxation under section 255 of the Tax Law, the pertinent portions of which are as follows: “If subsequent to the recording of a mortgage on which all taxes, if any, accrued under this article have been paid, a supplemental instrument or mortgage is recorded for the purpose of correcting or perfecting any'recorded mortgage * * * such additional instrument or mortgage shall not be subject to taxation under this article, unless it creates or secures a new or further indebtedness or obligation other than the principal indebtedness or obligation secured by or which under any contingency may be secured by the recorded primary mortgage * * *. If at the time of recording such instrument, or additional mortgage, any exemption is claimed under this section, there shall be filed with the recording officer, and preserved in his office, a statement under oath of the facts on which such claim for exemption is based.”

Not only have all the mortgage taxes which accrued upon the March mortgage not been paid, but at the time the July mortgage was presented for recording no statement was filed of the facts on which the claim of the relators for exemption of the July mortgage was based, nor even a claim made of the right of exemption, all of which were required by the statute in order to make the claim of right of exemption available. Nevertheless, the relators claimed before the State Tax Commission and now urge before us that the July mortgage was not taxable for the reason that it was supplemental to the March mortgage within the intent of the Tax Law.

“ Supplemental ” is defined in Bouvier’s Law Dictionary [Rawle’s Rev.], “ That which is added to a thing to complete it. ” By Webster’s New International Dictionary, “supplement ” is defined “ To fill up or supply by additions; to add something to; to fill the deficiencies of;” and “supplemental,” as “serving to supply what is lacking; supplementary.” As was said in Hygienic Ice & Refrigerating Co. v. Franey (142 App. Div. 143, 147): “A supplemental mortgage contemplates something to which it is supplemental; it is not the primary and only mortgage. In this case the first mortgage was discharged, and the mortgage in question was intended as a first mortgage to take the place of the other one which was to be discharged. The statute does not contemplate that if a man pays one mortgage with money borrowed upon another mortgage, the latter mortgage is exempt from taxation. Both are original mortgages, and the exemption provided for a supplemental mortgage has no application.”

In the case at bar the July mortgage was a substituted or superseding mortgage rather than a supplemental mortgage. It was executed for the purpose of refunding and discharging the March mortgage. It was no less a refunding mortgage because executed before the March mortgage became due. By the terms of the section a supplemental instrument or mortgage in order to be exempt from taxation must be recorded for the purpose of correcting or perfecting a recorded mortgage, or pursuant to some provision thereof. The relators concede that the March mortgage was in no respect incorrect or imperfect. The evidence shows that the July mortgage .was executed because the bonds secured by the March mortgage could not be disposed of for the reason that portions of the real and personal property covered by.the mortgage were subject to a prior lien of $62,000. Portions or all of this incumbered property situated in the States of Tennessee and New' York, and perhaps in Delaware also, were turned over to creditors of the oil corporation, and the July mortgage given upon such portions of the property covered by the March mortgage as were free from that lien. The bonds secured by the July mortgage were then exchanged dollar for dollar for the bonds issued under the March mortgage, and in March, 1914, the March mortgage was discharged. The value of the property included in the March mortgage which was excluded from the July mortgage, according to statements of relators filed with the county clerk at the times of recording the mortgages, was upwards of $1,000,000, and included two of the vessels. The March mortgage was named “first and refunding mortgage,” and the July mortgage “refunding gold bond mortgage.” The bonds secured by the former became due March 1, 1933, and by the latter July 1, 1933. That the relators did not themselves consider the July mortgage a supplemental mortgage appears from the fact that they made no such claim at the time of presenting the mortgage for record, but filed verified statements in conformity with section 260 of the Tax Law for which the amount of the liability might be computed, and voluntarily paid the full sum of upwards of $1,000 which they admitted to be owing, as the recording tax.

The decision of the State Tax Commission should be affirmed, with fifty dollars costs and disbursements.

Determination unanimously confirmed, with fifty dollars costs and disbursements.  