
    The People ex rel. Steinway & Sons, Relator, v. Otto Kelsey, as Comptroller of the State of New York, Respondent.
    
      Franchise tax —¡ land held for sale by a manufacturing corporation considered not to be employed in manufacturing and to be capital and not surplus. '
    A'domestic corporation engaged in the manufacture and sale: of pianos had a 250-acre tract of land on Long Island upon 50 acres of which its manufacturing plant was located. Upon a portion of the remaining 200 acres a number of dwelling houses were located'which produced a'monthly rental of 8600. The balance of the 200 acres was vacant, produced nó revenue and was held for salé as Village lots. , _
    
      Held, that the 200 acres were not employed.in manufacturing;
    That they must be considered as assets employed by' the corporation within the State of New York, and that notwithstanding, that the assets of the corporation aside from the 200 acres were in excess of the par value of the corporation’s stock:—there being no evidence that such land was actually purchased out of the surplus of the corporation ■—tlie value of such land, was to be considered as capital to be included when fixing the franchise tax payable by the corporation . under section 182 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap, 558), and not as surplus to be excluded when, fixing such tax.
    Certiorari issued out of the Supreme Court and attested on the lith day of J-une, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the revision and readjustment of the franchise tax assessed against the relator for the year ending October 31, 1901.
    
      Joseph P. Coughlin and Fernando Solinger, for the relator.
    
      Julius M. Mayer., Attorney-General, and James G. Graham, Deputy Attorney-General, for the respondent.
   Parker, P. J.:

The only question of difference in this case is, whether the 200 acres of land owned by the relator in Long Island City, and valued by its president at about $109,000, were properly included by the Comptroller in fixing the amount of the franchise tax levied against such relator for the year ending October 31, 1901, under the provisions of section 182 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558).

The relator is a domestic corporation engaged in the manufacture and sale of pianos, and has its manufacturing plant in this State. It also has one in London and another in Hamburg. Its capital stock is $2,000,000, and the full amount of its assets, including the 200 acres in question, is $2,396,000. During the year in question the relator made a dividend of twenty-three per cent upon its capital stock.

The 200 acres in question are part of a tract of 250 acres owned by the relator, and upon 50 acres of which are located shops and other buildings connected with its manufacturing business. On a portion of the 200 acres some 34 dwelling houses are erected, which are rented by the relator at a monthly rent of about $600, and such dwellings and the lots on which they stand are valued by the relator at about $56,100. The remaining land is vacant, now producing nothing, and is held for sale as village lots. The relator values it at about $52,900.

The relator contends that no part of this 200 acres should be included in fixing the tax against it. The Comptroller contends that it should all be included in estimating such tax, and has so included it at a valuation of $106,820.

If such 200 acres, or any part of it, can be deemed “ capital actually employed * * * in mamufacturi/ng,” as it is concededly in this State, it is expressly exempted by the provisions of section 183 of the Tax Law. But there is nothing in the evidence from which we can conclude that said land is so employed. Concededly it is no part of the land on which their shops are located, nOr on which any of them wqrk is carried on. Some thirty-four lots only are- built upon and rented; the rest are vacant f and it seems very clear that we-cannot interfere with the conclusion of the Comptroller that it is not actually employed in manufacturing. It cannot, therefore, on that account, be considered exempt..

Can it be -considered as capital actually employed in this State ?■

Two hundred acres of land upon which, in some places (where does not appeal') thirty-four dwelling houses are built and .earning- ' an annual rent, and the balance held for sale as soon as a satisfactory price Can be obtained, Would seem to be employed by the relator. . It annually adds $7,20.0 to the company’s dividends, and all the vacant part of it stands in the market ready for sale. At. any time it may be sold, and that which was vacant when this hearing was had may have already become producing; and it was then being-held, and constantly since has been held, for that very purpose. I conclude that it must be deemed employed. Nor do I find anything in the cases of People ex rel. Niagara River Hydraulic Co. v. Roberts (157 N. Y. 676) and People ex rel. Ft. George Realty Co. v. Miller (179 id. 49) that forces a contrary conclusion.

The remaining question is: Must it be deemed capital, or may -it be deemed surplus ? .If we may consider it surplus, then, not being capital, it is not within the provision of section 182 of the Tax Law (as amd. supra), under which this franchise tax -is levied. (People ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y. 543; People ex rel. United Verde Copper Co. v. Roberts, 156 id. 585; People ex rel. Commercial Cable Co. v. Morgan, 178 id. 433, 440.)

Concededly the "capital stock is $2,000,000 and the company’s assets are *$2,396,000. The valuation of the 200 acres, viz., $109,000, is a part of these total assets, and inasmuch as thé full $2,000,000 is shown, to be employed in the relator’s corporate business, either within or without this State, the relator claims that such $109,000 is evidently surplus invested in real estate. That it certainly is a specific sum invested in real estate and not used in its manufacturing business is clear, and I should be inclined to hold that, whenever the capital is unimpaired, we should consider the relator’s assets which are actually engaged in the business which it was chartered to carry on, its capital, rather than such properties as it holds in excess of its capital and which bear no relation to such business. In other words, even though those 200 acres were originally purchased with the relator’s capital, yet if its assets have increased and been invested in its business," so that it has the full amount of its capital stock so employed to-day, it should be allowed to claim that such lands, or even bonds and other property not employed in its legitimate business, is surplus and should not be regarded as capital, within the meaning of section 182 of the Tax Law (as amd. supra). But within the Commercial Cable Co. Case (supra) the rule is otherwise. It is there said with reference to certain bonds held by that relator under circumstances similar to these, that “ There is nothing to show that they were bought with surplus. The relator does, it is true, claim that they were bought with surplus, but its contention is founded upon nothing more than an argument to the effect that because it has more assets than share stock, there must be a- presumption that capital would be invested in properties relating to its business, while surplus would naturally be invested in safe interest-bearing securities. We can indulge in no such presumption, but if we could it would be of no avail as against the comptroller’s decision, which should not be disturbed unless clearly erroneous. (People ex rel. American C. & D. Co. v. Wemple, 129 N. Y. 558.) ” .

We must; therefore, conclude that this 200 acres of land was capital of the relator employed within this State, and that the decision of the Comptroller should, therefore, be affirmed.

Determination of the Comptroller unanimously' confirmed, with fifty dollars costs and disbursements.  