
    The People of the State of New York ex rel. The Brooklyn Elevated Railroad Company, Relator, v. James A. Roberts, Comptroller of the State of New York Respondent.
    
      Taxation of a corporation — mlmation of railroad . ioch— average price during the year — the intrinsic value need not be fixed — presumption in favor of and conclusiveness of the Comptroller’s valuation.
    
    Where the Comptroller in estimating and appraising the capital stock of a railroad company, for the purposo of taxation under chapter 542 of the Laws of 1880 and the acts amendatory thereof, fixes tlie valuation at the average price at which the stock sold during the year, lie has complied with the statute, and it is not necessary for him to ascertain the “intrinsic” or actual value of the stock in cash, unless such intrinsic value exceeded the market value.
    "Where a person or corporation aggrieved seeks to review the action of the Comptroller in imposing a tax under chapter 542 of the Laws of 1880, the burden is upon the relator to show some error or mistake upon the part of the Comptroller.
    The determination of the Comptroller as to tlie amount of a tax should not he disturbed unless it clearly appears that it is erroneous.
    Certiorari issued out of tlie Supreme Court, and attested on tlie loth day of February, 1891, directed to James A. Roberts, Comptroller of the State of New York, commanding kini to certify and return to the'office of the clerk of the county of Albany all bis acts and proceedings relative to the assessment of the Brooklyn .Elevated Railroad Company for taxes for the year ending November 1,1893, together with all other papers, documents and records pertaining to the assessment of said relator, and also a statement of such facts as might be pertinent or material to show the legality of said assessment and tlie value of the property so assessed and the ground for the valuation made by said Comptroller, and also all his acts and proceedings, with all papers, documents and records before him pertaining to the application of tlie said relator for a revision or resettlement of sueli assessment.
    
      William II. Page, Jr., and Fredeiick P. Delafielcl, for tlie relator.
    
      T. F. Ilaneoek, Attorney-General (G.D. B. Ilasbroudc, Deputy Attorney- General), for tlie respondent.
   Putnam, J. :

This is a proceeding brought to review a valuation made by the Comptroller of the State of the capital stock of the Brooklyn Elevated Railroad Company for the purpose of taxation for the year 1893, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof and supplemental thereto. Relator contends that the Comptroller erred in the principle upon which he proceeded in making the valuation.

On the 16th day of November, 1893, relator made a report under the provisions of section 1 of the act of 1S80, by which it appraised its capital stock at twenty dollars per share. The Comptroller, being dissatisfied with such appraisal, made a valuation of said stock at thirty dollars per share. Thereafter, on motion for a rehearing, ho reappraised the stock at twenty-nine and five-sixths dollars per share.

Under section 1 of the act of 1880 it was the duty of the Brooklyn Elevated Railroad Company, in making its report to the Comptroller, to estimate and appraise its capital stock at its actual cash value, “ not less, however, than the average price which said stock sold for during said year.” And the statute provided that if the Comptroller was not satisfied with the valuation so made, lie was authorized to make a valuation thereof and to settle an account upon the valuation so made by him for the taxes, penalties and interest due the State thereon.

The only question that need be considered is whether or not it is shown by the papers and evidence submitted to us that the Comptroller, in fixing the valuation of relator’s capital stock, appraised it at a sum above the average price at which said stock sold during the year. It was not necessary for him to ascertain the “ intrinsic ” or the actual value of the stock in cash unless that exceeded the market value, as, under the statute, he was obliged to appraise it at a sum not less than the average price at which said stock sold during the year.

It is well settled that in a proceeding'to review the action of the Comptroller in imposing a tax under the act of 1880, the burden is upon the relator to show the error or mistake, if any, of the Comptroller. (People ex rel. Western Electric Co. v. Campbell, 80 Hun, 466.) It is said by Cray, J., in People ex rel. American Const. & Dreding Co. v. Wemple (129 N. Y. at page 565), “The determination of the Comptroller as to the assessment and taxation, unless clearly shown to have been erroneous, should not be disturbed.” And in People ex rel. Roebling's Sons’ Co. v. Wemple (138 N. Y. at page 583), O’Brien, J., says in regard to an assessment by the Comptroller under, the act of 1880; “ Ilis determination as to the amount of the tax should not' be disturbed now unless it clearly appears to be erroneous.” ' It was not, therefore, as the learned counsel for the relator assumes, incumbent on the Comptroller to show that his valuation of relator’s stock, and his determination as to the market value thereof, was right, but, on the contrary, the burden was upon the relator to show the error, if any, of the Comptroller.

After a careful examination of the papers submitted to us and the evidence taken in the case, we- find it impossible to say that the relator established the fact that the valuation placed upon its stock by the Comptroller was greater than the average price at which said stock sold during the year allowed. The only witness' who testified before the Comptroller was Mr. Longyear, auditor of relator, and produced by it as a witness. He swore that the stock sold during the year in question from nineteen to forty and three-eighths, nineteen being the lowest and forty and three-eiglitlis the highest sum paid for the stock, and that the average market value, as shown by the quotations during such year was twenty-nine and five-sixths, that being the valuation placed upon said stock by the Comptroller. It is impossible, therefore, to say that the relato]1 proved any error or mistake on the part of the Comptroller "in fixing the valuation of its stock. The statute prescribed that its valuation should not be less than the average price for which said stock sold during the year. It was shown that there had been sales of the stock of relator during that period, and its own witness fixed the average price thereof at the sum at which the Comptroller valued its capital stock. We are of opinion that the papers and evidence submitted sustain the determination made by the Comptroller.

Determination of the Comptroller confirmed and writ of certiorari quashed, with fifty dollars costs, printing and other disbursements.

•Mayhmm, P. J., and Herrick, J., concurred.

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