
    The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Relator, v. Nathan L. Miller, as Comptroller of the State of New York, Respondent.
    
      Franchise tax— only the rolling stock of a rail/road exclusively and continuously used outside the State of New York is to be credited to the company in making the assessment: '
    
    In assessing, pursuant to section 182 of the Tax Law (Laws of 1896, chap. 908) the franchise tax against a railroad company, the latter is not entitled to he credited with the average amount of its rolling stock employed during the year outside the State of New York, hut only with such amount of its rolling stock as was exclusively and continuously used outside the State during that time.
    Certiorari issued out of the Supreme Court and attested on the 13th day of June, 1903, directed to. Nathan L. Miller, 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 determining, upon a remittitur from the Court of Appeals to him, that no portion of the relator’s rolling stock is exempt from the annual franchise tax imposed for the year ending October 31, 1900.
    
      
      Ira A. Place and Thomas Emery, for the relator.
    
      John Cunneen, Attorney-General, and William H. Wood, for the respondent.
   Houghton, J. :

The original determination of the Comptroller imposing the franchise tax, under section 182 of the Tax Law (Laws of 1896, chap. 908), upon the relator for the year ending October. 31,1900, was reviewed by this court and a readjustment ordered. (People ex rel.N. Y. C. & H. R. R. R. Co. v. Knight, 75 App. Div.169.) On that readjustment it was held that the relator was entitled to be credited on the value of its rolling stock with the sum of $15,230,186.06, which was the proportionate value of the average amount of its rolling stock employed outside the State during, the year.

, Upon a review of our decision by the Court of Appeals that court decided that the relator could not be credited with this average amount of its rolling stock employed outside the State during the year, but only with such of it as was used exclusively and continuously outside, and remitted the proceeding to the Comptroller for further hearing upon- that, subject. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Knight, 173 N. Y. 255.)

That hearing has been had and the Comptroller has found that none of the rolling stock was used continuously and exclusively throughout the year outside the State of Hew York, and has deducted nothing for the value of cars and equipment temporarily or on an average employed outside.

The' relator insists that the Comptroller has misapprehended the decision of the Court of Appeals. We do not think so. The decision is very plain. There are two opinions, one discussing all the questions and upholding the credit directed to be given for the value of the average amount of cars employed by the relator outside the State during the year. The majority of the court, however, refused to concur in the propriety of this credit, and the matter was, therefore, remitted to the Comptroller for further proof upon the subject of continuous and exclusive employment by the relator of rolling stock outside the State.

The relator failed to establish upon such hearing that it employed .any of its rolling stock in this manner, and the Comptroller has properly found that none was so employed, and it remains only for us to confirm his determination.

It would be neither profitable nor. proper for ns to enter upon a discussion of a question _ so pointedly decided, or even to point out the logical effect of the application of the rule to the imposition of the franchise tax upon foreign corporations employing in a similar manner a portion of their capital within the State.

The determination of the Comptroller must be confirmed, with costs.

All concurred.

Determination of the Comptroller affirmed, with fifty dollars costs and disbursements. "  