
    The People of the State of New York ex rel. Wedgewood Realty Co., Inc., Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Submitted October 2, 1933;
    decided October 10, 1933.)
   Per Curiam.

The order to show cause provides: “ Let the respondents or their attorneys show cause * * * why an ’ order should not be made directing that the remittitur dated the 11th day of July, 1933, be returned to this court and be amended by adding after the words ‘ in accordance with the opinion of Pound, Ch. J.,’ the following: and that upon said further hearing the tax commission, in determining the amount of the earnings distributed, omit from surplus any appreciation in excess of cost in the value of the real estate of the old Wedgewood Company not realized by sale prior to December 31, 1927.’ ”

The point is that the opinion (262 N. Y. 202) does not clarify the meaning of “ earnings ” and that the Tax Commission insists in including therein appreciation in excess of cost in the value of the real estate of the old Wedgewood Company not realized by sale prior to December 31, 1927. The opinion indicates that the reorganization resulted in a division of profits by the corporation. The appreciation in value of the real estate was included in profits.

Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements.  