
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ARMSTRONG CORK COMPANY, Respondent, v. EDWARD P. BARKER and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Tax — merchandise consigned by a foreign corporation to its agent for sale in the State of New York is not, but accounts receivable are, taxable.
    
    Merchandise consigned by a corporation, organized under the laws of Pennsylvania and engaged in the transaction of business in the State of Mew York, to its agent for sale -within the State of Mew York, is not taxable as capital of the corporation invested in business in the State of Mew York, under section 7 of chapter 908 of the Laws of 1896, but accounts receivable payable to such a corporation at its place of business in the State of Mew York, on account of merchandise sold by it in the course of the transaction of its business in the State of Mew York, constitute capital of the corporation invested in business in that State, within the meaning of the statute.
    Appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1898, adjudging that the proceedings and adjudications of the defendants, in regard to the assessment for taxation of the relator for the year 1897, were illegal and erroneous, •and ordering that the assessment complained of be corrected by reducing it from the sum of §342,403 to the sum of §189,408.96.
    
      James M. Ward, for the appellant.
    
      Charles J. Hardy, for the respondent.
   Ingraham, J.:

The appellants, as commissioners of taxes and assessments', fixed the taxable value -of the petitioner’s capital invested in business in this State at $342,403, and this proceeding is instituted to review that assessment. The court below reduced the assessment to the sum of $189,408.96. The relator is a foreign corporation, organized under the law of the State of Pennsylvania and engaged in the transaction of business at 45 Murray street, in the city of New York. The only question involved is as to the deduction by the court of two items as not capital of the relator invested in business in this State. These two amounts aggregate §152,915.04; one represented accounts receivable at the Murray street agency, $51,463.24, and the other merchandise at the Murray street agency, §101,451.80. As to the merchandise at the Murray street agency, we think that was not taxable within the principle settled in the cases of People ex rel. Parker Mills v. Commissioners (23 N. Y. 242) and People ex rel. Sherwin Co. v. Barker (5 App. Div. 246). The question in these cases related solely to merchandise consigned to the agent of a foreign corporation for sale within this State. In the Sherwin case the relator had, in the year 1874, money deposited in this city to the amount of $781.45, and office furniture of about the value of $500. In addition to that, it had in its store, sent from Ohio for sale, goods of the value of about $15,000, and the commissioners assessed the appellant in the amount of $16,200. That amount was reduced by the Special Term to $1,281.45, being the amount of its cash on hand and the value of its furniture; and that deduction was confirmed by this court.

In addition to this merchandise sent to this State for sale, the corporation has due to it, as the proceeds of the sale 'of property sent here and payable at its place of business in this city, the sum of $51,463.24. The statute under which this assessment was imposed is section 7 of chapter 908 of the Laws of 1896. That section provides that “ non-residents of the State doing business in the State, either as principals or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on to the same extent as if they were residents of the State,” and is a substitute for section 1 of chapter 37 of the Laws of 1855. While the phraseology is somewhat different, it does not seem that there is any substantial distinction. The question is what capital has this foreign corporation invested in business in this State; or, in other words, is the $51,000 which is the amount due for property sold by this corporation in this State in the transaction of its business, capital invested in business in this State ? It seems to me that this question is answered in the affirmative by the case of People ex rel. Yellow Pine Co. v. Barker (23 App. Div. 524). The question in that case was whether the sum of $222,014, representing credits and bills receivable due to the corporation for merchandise sold by it in the course of the transaction of its business in the State of New York should be included among its capital assets; and the court held, under chapter 37 of the Laws of 1855, that it was properly included. The precise question here submitted having been determined against the relator in the last case cited, we think it is controlling and that the sum of $51,463.24 should have been included in the assessment of property, subject to taxation as capital of the relator invested in business in this State.

The order appealed from is, therefore, modified by refixing the amount of the assessment at the sum of $240,872.20, and the order, as so modified, is affirmed, without costs of this appeal.

Van Brunt, P. J., Rumset and Patterson, JJ., concurred.

Order modified by refixing amount of assessment at the sum of $240,872.20, and as so modified affirmed, without costs of this appeal.  