
    The People ex rel. American Axe and Tool Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed December 4, 1894.)
    
    1. Taxes—Corporation—Comptroller’s decision.
    The determination of the comptroller in appraising the value of the capital stock of a foreign corporation, employed in this state, will not be disturbed, unless clearly shown to be erroneous.
    3. Same.
    The burden of establishing such error is upon the relator.
    Application for a writ of certiorari to review a tax assessment.
    
      Frederick Q. Dow, for relator; Theodore F. Hancock, Atty.-Gen. {John W. Hogan, of counsel), for resp’t.
   Putnam, J.

Relator, a foreign corporation, with an authorized capital stock of $5,000,000, of which $3,872,500 had been issued, on November 14, 1893, filed a report and appraisement with the comptroller under the provisions of chapter 542 of the Laws of 1880 and the several acts amendatory thereof, wherein it reported the amount of its capital stock employed in this state during the year in question at the sum of $1,284,058.34, and the value thereof, as appraised by the officers of the company, at the sum of twenty-five dollars per share, thus making the value of that portion of its capital employed in the state $321,014.58. The comptroller was dissatisfied with the estimate and appraisal made by relator, and determined the amount of its capital employed in this state to be $1,284,058.34, upon which amount he decided relator was liable to pay a tax. On the rehearing before the comptroller, on the application of the relator, he refused to revise the tax determined as aforesaid. It appears by the statement made and filed with the comptoller on the 14th day of November, 1893, that 38,725 shares of the relator, of the par value of $100 per share, and on which $100 per share had been paid into the treasury of the company, had been issued. Hence the amount of capital possessed by the corporation was $3,872,500, on which a dividend of one per cent, had been paid on April 20, 1893. It also appeared that during the year in question none of the stock had been sold; that the capital stock employed in the state of New York was $1,284,058.34. Accompanying said report was an appraisement thereof, made by the treasurer and secretary of said company, wherein they estimated its value at twenty-five dollars per share. In People ex rel. Singer Mfg. Co. v. Wemple, 78 Hun, 63-66; 60 St. Rep. 662, we considered the meaning of the words “ capital stock,” as used in chapter 542 of the Laws of 1880 and acts amendatory thereof, and reached the conclusion that those words referred to the capital authorized by the charter of the company and paid in or contributed by the stockholders. .For instance, in the case of relator, $3,872,500 has been paid in by the stockholders. That sum was the capital stock of the corporation, the company owning that fund for the purpose of carrying on its business. That stock was represented by a certain number of shares, owned by the members of the corporation, the stockholders. We think our view of the meaning of the words “capital stock ” is clearly sustained by the authorities cited in People ex rel. Singer Mfg. Co. v. Wemple, 78 Hun, at pages 66, 67; 60 St. Rep. 662. As said by Justice Earl in Williams v. W. U. Telegraph Co., 93 N. Y. 162-188: “The capital stock in this section does not mean share stock, but it means the property of the corporation, contributed by its stockholders, or otherwise obtained by it, to the extent required by its charter.”

When relator filed its report and appraisement on November 14, 1893, the comptroller was not concluded by the valuation made by its officers of its capital stock employed within the state. Section 11, chap. 151, of the Laws of 1882, as amended by chapter 501 of the Laws of 1885, provides that: “Whenever the comptroller is dissatisfied with such report or certificate of estimate and appraisal, as the case may be, of any corporation, joint-stock company or association whose capital is only partially employed within this state, he is authorized and empowered to ascertain, fix and determine the amount of capital employed within this state, and to settle an account for the taxes and penalties due the state thereon.”

The relator claimed the amount of its capital stock employed within this state was $321,014.58. The comptroller estimated it at $1,284,058.34. We are unable to say that the comptroller erred in this matter. The relator reported that $,284,058.34 of said stock was employed in the state,—doubtless meaning at the par value thereof, and the appraisal of its officers fixed the value of said" stock at one-quarter of that sum. It thus appeared to the comptroller, from the statement and appraisement of relator filed in his office, on the one hand, that $1,284,058.34 of its capital stock was employed in the state, on account of which an equal sum had been paid into the treasury of the corporation. On the other hand was the appraisement of the secretary and treasurer estimating said stock at one-quarter of the par value. There had been no sale of the stock. The comptroller might properly hold, in the absence of any satisfactory explanation, that the value of the capital stock, the property of relator, was equal to the sum paid into the treasury of the corporation. On that assumption he could well doubt the truth of the report of the officers of relator in estimating that its stock had so shrunken as to be only worth one-quarter of its par value. Again, by said report the value of relator’s real estate in New York was placed at the sum of $446,-000, while it claimed the value of its capital stock in the state was only $321,014.58. As it was not suggested that relator possessed any surplus capital, the amount invested by it in the state of New York must necessarily be part of its capital stock. The comptroller, therefore, was justified in doubting the reliability of the appraisement of the relator’s officers, which made its capital stock employed in the state less than the conceded value of its real estate therein.

We think, under the circumstances, under the report and appraisement filed, and in the absence of any explanation showing how $1,284,058.34, paid into the treasury of the corporation as capital stock, could in a short time diminish in value to one-quarter of said sum, the comptroller could properly determine that the value of the defendant’s stock in the state was what had been paid into the corporation therefor. However that may be, we have seen that the above-quoted provision of the statute empowered the comptroller to make an appraisal of the value of the capital stock of the corporation. He was not bound to follow the report of its officers. As held in People ex rel. Roeblings’ Sons Co. v. Wemple, 138 N. Y. 582; 53 St. Rep. 297: ‘;He is made by the statute an assessor himself, and he had a right to estimate its value according to such information as he could obtain, or upon his own judgment.” And it has been determined that a decision of the comptroller in such a case, unless clearly shown to be erroneous, will not be disturbed. It is for the relator, on the application for a rehearing, to establish the fact that the conclusion of the comptroller in fixing the value of its property within the state was erroneous. People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y. 558-565; 42 St. Rep. 400; People ex rel. Postal Tel. Co. v. Campbell, 70 Hun, 507; 53 St. Rep. 790. But the return of the comptroller shows that on the application for a rehearing and revision no evidence was produced showing that the tax levied and assessed by the comptroller was illegally imposed, and we are unable to find any evidence in the papers showing error on the part of the comptroller in the appraisement of the relator’s, property in this state produced on the application for revision. On that application we infer from the papers that relator relied on the original report and appraisement of November 14, 1893, as evidence of error in the conclusion reached by the comptroller. For reasons above suggested, we do not think the comptroller was bound by the estimate of the secretary and treasurer of the company. The statute made him an appraiser, and his determination, was conclusive, unless on application for revision it was shown to be erroneous. Certainly such report and appraisement did not make it clearly appear, as held necessary in People v. Wemple, supra, on an application for a revision, that the conclusion reached by the comptroller was erroneous. It is not doubtful what course should be adopted by the relator on the application for a rehearing. It should have made an inventory of all the real and personal property and money, if any, owned by it within this state, and offered satisfactory proof that it owned no property therein except as set out in the inventory. Whatever property, real or personal, relator had within the state, was presumptively a part of its capital stock, and liable to taxation. The relator, on the motion for revision, seems to have failed to offer any evidence tending to show that the comptroller had erred in his original appraisement. If there was any error on the part of the latter, it was easily within the power of the relator to show it by proving just what property it had in the state. We think the decision of the comptroller should be affirmed, with costs.

All concur.  