
    The People ex rel. The Sicilian Asphalt Co., Relator, v. Thomas L. Feitner et al., Commissioners of Taxes and Assessments of the City of New York, Respondents.
    (Supreme Court, New York Special Term,
    March, 1900.)
    1. Taxation — Payment of unearned dividend does not justify taxation of the capital as unimpaired.
    Where a domestic corporation files, with the tax commissioners of the city of New York, a verified statement showing that its debts largely exceed its taxable assets, and its secretary subsequently gives testimony to the same effect upon his examination under oath, his further statement, then made, that, although there had been no surplus profits or surplus earnings during the year, the corporation had paid a dividend of two per cent, out of earnings — which had formed one of the items of its personalty and was designated in the statement as “ cash in bank ” — does not justify the said tax commissioners in “ disregarding ” the debts of the corporation and assuming that, for the purposes of taxation, “ its capital was unimpaired and that it had assets in excess of its capital sufficient to pay debts”.
    2. Same—Excusable failure to answer questions in the taxation blank.
    The failure of the corporation to answer the question, in the taxation statement or blank, “ Amount of surplus earnings ” — when there were none — and the further question “Rate of dividend for last year ” — when the secretary might have been examined as to it — does not justify the commissioners in doubting the statement and assessing the corporation upon its capital as unimpaired.
    Cbbtiobael brought under the General Tax Law, to review the assessment for the year 1899, made against the personal property of the relator, a domestic corporation.
    Fettretch, Silkman & Seybel, for relator.
    John Whalen, Corporation Counsel, for respondents.
   Freedman, J.

This is a writ of certiorari brought under the General Tax Law, to review the assessment for the year 1899, made against the personal property of the relator, a domestic corporation. On the second Monday of 1899 the deputy tax commissioner assessed the relator at a valuation of $250,000. Within the time limited by statute, the relator filed with the commissioners a statement made upon oath showing its condition for the purposes of taxation. That statement showed that the gross assets amounted to the sum of $421,051.19; that the assessed value of the real estate was the sum of $50,000, and that the amounts invested in stocks of other companies which are taxed upon their capital was the sum of $66,106.46. The amount of indebtedness, aside from bonds given for the maintenance of pavements in certain cities, was the sum of $323,156.59. Subsequently the'secretary of the company was examined under oath by the assistant corporation counsel, and testified in detail to the several items of personal property owned by the corporation, which amounted to the sum of $311,-051.19. - He also testified that in January, 1899, the company declared a dividend of 2 per cent., although he stated that there had been no surplus profits nor surplus earnings, and that the said dividend amounting to the sum of $5,000 had been paid out of the sum of $35,089.20, which was earnings, and which had formed one of the items composing the aggregate amount of personal property and designated therein as “ cash in bank.” Thereupon, and upon that statement alone, the tax commissioners determined as matter of fact, that the relator’s capital was unimpaired, and assumed as a matter of law, that the relator had assets in excess of its capital sufficient to pay its debts, and they, therefore, “ disregarded the debts ” of the company and fixed the assessment at the sum of $133,894 arriving at that sum by deducting from the amount of the relator’s capital stock of $250,000 the assessed value of its real estate of $50,000, and stocks of other companies of $66,106. In this the respondents erred. The testimony of the secretary of the company .was clear, full, explicit and uncontradicted as to'what the debts, of the corporation consisted of, giving the different items of which they were composed, and after being care-: fully and fully examined upon that subject by the assistant corporation counsel, it was established that those debts amounted to the sum of $323,156.59, excluding therefrom the bonds given by the company for the maintenance of pavements in cities, and under which bonds they were contingently liable. The respondents claim that the fact that the company paid a dividend, and that the secretary testified that there was a surplus of $5,000, was sufficient to' authorize them to “ assume that its capital was unimpaired, and that it had assets in excess of its capital sufficient to satisfy its debts,” notwithstanding that its statement under oath and the unimpeached testimony of its secretary upon oral examination showed that its debts and liabilities were largely in excess of its taxable property. But the testimony of the secretary, when read as a whole and not by selection of particular portions of it, does not sustain the contention of the respondents. It is true that he testified that the company had made a dividend, and said, in answer to a question put by the corporation counsel, that the company had paid stlch dividend from a surplus ” of $5,000, “ if,” he said, u you want to put it that way; ” but he had previously explained that this dividend had been taken from the cash in bank, or earnings, but not “ surplus earnings,” for he said there had been no surplus earnings,” and, his testimony establishing the amount of the debts being uncontradicted and showing them clearly and conclusively to be in excess of the taxable property, the commissioners had no right to “ disregard ” the debts and base their assessment upon mere assumption. That the company may be criticised for having made a dividend out of earnings instead of paying its liabilities does not alter the facts nor give the commissioners authority to arbitrarily refuse to grant the relator the relief it has shown itself to be entitled to and for which it has asked, based as it is upon uncontradicted and unimpeached testimony. Two questions contained in the statement furnished the commissioners by the company were unanswered, to wit: Amount of surplus earnings. Bate of dividend for last year or last annual dividend. Respondents’ counsel' claims that the failure to' answer those questions was a concealment of the facts called for, and contends that the testimony of the secretary of the'company taken upon the oral examination disclosed that there was “ surplus earnings ” and a dividend made, and that the commissioners, therefore, had a right to doubt the statement filed and rely upon the presumption arising from the fact that a dividend was made, to show an unimpaired capital and an amount of assets equal or in excess of liabilities. The answer to that is that, as before stated, the proof is that there were no surplus earnings,” and also as to how and from what source the dividend was made, and as to why the fact that a dividend was made did not appear in the statement was not shown nor inquired about, although the corporation counsel had ample opportunity to have ascertained from the examination of the secretary if he deemed such omission was made in bad faith and for the purpose of misleading the commissioners. In the cases of People ex rel. Edison Gen. Electric Co. v. Barker, 141 N. Y. 255; People ex rel. Edison Electric Ill. Co. v. Barker, 139 id. 61, and People ex rel. Brokaw Bros. v. Feitner, 44 App. Div. 218, dividends had been made under quite similar circumstances as in the case at bar, and in the latter case the court said: “As was said by the Court of "Appeals in People ex rel. Edison Gen. Electric Co. v. Barker, 141 N. Y. 255, these suggestions serve to show that the duty -of the tax commissioners is not to subordinate facts, fairly disclosed and uncontradictcd, to the influence of presumptions amounting to little more than a guess or possibility * * * they were not justified in assuming that the treasurer, for the purpose of evading taxation, had falsely underestimated the assets, because' of a recent dividend the declaration of which did not necessarily involve the fact of an unimpaired capital.” Upon the entire proof it is undisputed that the relator’s debts exceed its taxable assets, and as a matter of law the commissioners did not correctly determine the facts before them, and the relator is, therefore, entitled to an order or judgment setting aside and vacating the assessment complained of.

Judgment accordingly.  