
    The People of the State of New York ex rel. F. W. Devoe & C. T. Raynolds Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.
    
      Tax — a corporation engaged in mixing paints is a manufacturing corporation — tax on capital used in violation of its charter.
    
    A corporation which makes paints by mixing, in definite proportions, dry colors manufactured by itself, with linseed oil and turpentine, and with other ingre- ■ dients not manufactured by it, stirring the mixture by machinery and after-wards grinding the resulting mass, none of the- separate. ingredients being . capable oí use for any' of the purposes for which the mixed paint is used, is engaged in the manufacturing business, within the meaning of the statute ’ exempting capital so invested from taxation.
    'Such a corporation is taxable upon that portion of its capital employed by it in other than the manufacturing business, although so employed in violation of its charter.
    Certiorari issued out of the Supreme Court and attested bn the 4th day of October, 1897, directed to James A. Roberts, 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 tax on the capital-Stock of the relator employed in the State of New York for the years ending November 1, 3891-1895.
    
      Edmund L. Cole and John B. Green, for the relator.
    
      John C. Davies, Attorney-General, and John H. Coyne, Deputy Attorney-General, for the respondent.
   Herrick, J.:

. The relator is incorporated under the laws, of the State of New Jersey, exclusively as a manufacturing corporation, for the manufacture of varnish, paints and other products and articles incidental to the paint and varnish trade. , .

Its manufacturing business is earned on wholly within the State of New York. It makes what is known as dry colors, paints and varnish. The dry colors, so called, are made by it from, various chemicals; the process - of such making is described in -the testimony in the case, and I think as to such dry colors no question can be raised but what the process of making them is manufacturing within the meaning of the law.

The principal business of the relator is making mixed paints.

The dry colors are used in the making of colored paints by mixing with linseed oil, turpentine and a dryer. Perhaps one-half of their product of mixed paints is-made from colors or pigments manufactured by them, and the other one-half from an admixture of ingredients, none of which are made by them, as for instance, white-mixed paint, which is made from white lead, linseed oil, turpentine and a dryer, hone of these ingredients being made by the relator. The proportions of the various ingredients are known only to the maker of the paint. The oil and the white lead are put into what is known as an iron mixer, with arms in it, by which the mixture is stirred up for several hours until it becomes a homogeneous mass — a paste. The paste is then taken out of the mixer and put into a wooden tank, then more oil is added, and turpentine and a' dryer; the mixture is again stirred up by mechanical power for two or three hours, and the resulting mass is then ground in a burr-stone mill, so that all small ¡^articles of undesirable matter in it are ground out; then it is run into a receiving tank ready to be placed in cans. None of the separate, ingredients can be used for any of the purposes for which the mixed paint is used.

The article thus produced by the relator is a commercial article of value recognized by a specific and distinctive name—a result of the use of capital, labor and machinery ; it is a new article, different from any of its ingredients, fitted for sale, use and consumption, and is within the definitions of what constitutes a manufactured article and the making of it, manufacturing. (See Century Dictionary, Standard Dictionary, Worcester’s Dictionary; People ex rel. Union Pacific Tea Co. v. Roberts, 145 N. Y. 375; People ex rel. Brush El. Mfg. Co. v. Wemple, 129 id. 543, 552; Evening Journal Assn. v. State Board of Assessors, 47 N. J. Law, 36 ; Carlin v. Western Assurance Co. of Toronto, 57 Md. 515, 526; United States v. Hathaway, 4 Wall. 404.)

The fact that the relator did not make the white lead or other pigments, the linseed oil, the turpén tine or the dryer, does not take the process, by which those several articles were combined to make paint without the process known as mamifacturing. It is not necessary to constitute one a manufacturer that he should make all the ingredients or articles which go to make up the finished product. (People ex rel. Waterman Company v. Morgan, 63 N. Y. Supp. 76.)

It appears that, in addition to the manufacturing of paints, varnish and articles incidental to such manufacture, the relator also imports some merchandise, constituting, however, but a small proportion of its business.

All the business that it, was' carrying on in this State under its charter was manufacturing business^ and within the case of Peo ple ex rel. Tiffany v. Campbell (144 N. Y. 166) that portion of its •capital employed in this State wholly in manufacturing is exempt from taxation, and that portion of it which was engaged.or employed in other than manufacturing business, business which under its' charter it was not authorized to do, was properly subject to taxation. The amount of such capital so employed, I understand, is practically undisputed, being for the year 1891, $84,000 and the tax thereon $126 ; for the year 1892, $12.5,000, .tax, $187.50 ; 1893, $104,000, tax, $156; 1894, $101,000, tax, $151.50; 1895, $97,500, tax, $146.25. And the determination of ■ the Comptroller as to the tax for these several years should be modified accordingly, and as so modified his determination affirmed, with $50 costs and disbursements to the relator.

All concurred.

Determination of the Comptroller modified in accordance with opinion, and as so' modified affirmed, with fifty dollars costs and disbursements to .the relator.  