
    The People ex rel. Edison Electric Light Company, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. Taxes — Cobforations.
    ■ Where the assessing of taxes upon a corporation has proceeded for" a number of years upon the erroneous assumption that during that time it was not engaged in the manufacturing business, the determination of the comptroller will be reversed.
    3. Same.
    The return of the comptroller was held not to deny the statement of the petition that the company manufactured and distributed electricity to its customers.
    Certiorari to review the decision of the comptroller in assessing relator’s for taxation.
    
      Eaton & Lewis (Eugene H. Lewis and C. R. Waterbury, of counsel), for relator; T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Rep. Atty. Gen., of counsel), for resp’t.
   Herrick, J.

— This is a certiorari to review the assessment of certain taxes made by the comptroller of the state of New York upon the capital stock of the relator for the years 1881,1882,1883, 1884, and 1885, inclusive. Except for the decision in the case of People ex rel. Edison Electric Light Company v. Wemple, 133 N. Y. 617 ; 44 St. Rep. 871,1 should hold that these proceedings were barred by the statute of limitations ; but until the court of last resort, upon a more careful and deliberate consideration of that question, sees fit to reverse its then holding, J feel compelled •to follow the decision there made. The assessing of taxes upon the defendant for the years mentioned proceeded upon the assumption that during such years the relator was not engaged in the manufacturing business. The petition of the relator, after setting forth that in the course of its business it did, during such years, make contracts with licensee companies and individuals to construct, operate, and sell complete central station plants for the purpose of furnishing electric light, heat, and power, and describing what it did in connection with its contracts, alleges “ that during the same period the light company owned and operated electric light and power plants, and manufactured and distributed, by conductors from the central stations, electricity to its customers.” The return of the comptroller cannot be said to deny this statement of the petition. It states that: “ During the several years mentioned the relator’s principal business was the owning and licensing of various kinds of patents employed in lighting, heating, or furnishing motive power by electricity, and its principal income and revenue during those years resulted from the sale of royalties for the use of patents owned by relator, which patents were used by other companies or corporations, and the relator’s capital was largely represented by its ownership of bonds and stocks of other companies ; and, as I believe, relator did not furnish but little, if any, light, or run or operate wires to any extent, during said time.” The return of the comptroller in these proceeding has been held conclusive as to the facts. But here, it will be perceived, there is no definite return by the comptroller as to the facts. He does not deny the relator’s statement that it manufactured electricity and furnished it to its customers. He asserts that he believes that the relator did not furnish but little, if any, light, or run or operate wires to any extent. This leaves it open to the inference that the relator did furnish some light, — that it did run and operate wires to some extent, — and taken in connection, as we must, under the circumstances, with the allegations in the petition of the relator, it appears that during the years in question the relator was engaged in the production and distribution to its customers of electricity. The production of electricity has been held to be manufacturing, within the meaning of the statute People ex rel. Brush Electric Manufg Co. v. Wemple, 129 N. Y. 543; 42 St. Rep. 272. The comptroller having proceeded upon the assumption that the relator was not engaged in the manufacturing business, his determination must be reversed.

Determination of comptroller reversed, with $50 costs and disbursements.

Putnam, J., concurs; Mayham, P. J., not acting.  