
    The People ex rel. The American Surety Co. of New York, App’lt, v. Frank Campbell, Comptroller, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Taxes—Corporations—Revisal by comptroller—Certiorari.
    The time within which a certioran'i to review the decision of the comptroller upon an application to revise and readjust a tax may be granted, cannot be extended by a second application to him or one to set aside his former decision.
    2. Same.
    After the comptroller has rendered his decision on such an application, the power conferred by § 19 of chap. 542, Laws 1880, is spent, and his decision should have the force of a judgment. But if he have power to open the case and consider it on its merits anew, he is not bound to do so, and certiorari will not lie to review his determination in that regard.
    Certiorari to review decision of the comptroller of the state, declining to revise and resettle an account stated against relator for taxes on its capital stock for the year ending November 1, 1890.
    
      John J. Crawford, for app’lt; Simon W. Rosendale, attorney general, for resp’t.
   Putnam, J.

I think the writ of certiorari herein was improvidently granted.

The relator seeks to review the decision of the comptroller settling the tax on its capital for the year ending November 1, 1890, under chap. 542 of the Laws of 1880, as amended. These taxes were settled and stated by the comptroller on the 6th day of April, 1891, at $1,500. The relator thereafter made an application to the comptroller under § 19 of the act of 1880, as amended in 1889, to review and correct said assessment. Said application was made on affidavits and was entertained and considered by the comptroller and on June 9, 1891, he rendered his decision .denying said application.

Under § 20 of the act of 1880, as amended by chap. 463 of the Laws of 1889, the decision of the comptroller can be reviewed by the supreme court upon certiorari, on the law and facts. By § 17 of the Laws of 1880, added by chap. 501 of the Laws of 1885, no such writ of certiorari shall be granted. except application therefor shall be made within thirty days after service upon such corporation of a notice of such decision. Nor shall such writ be granted unless the papers upon which the motion therefor was made, including notice of motion, shall have been served upon the comptroller at least eight days before such notice. Nor unless the corporation making such motion shall have filed with the comptroller an undertaking, etc.

Without considering the fact that no notice of motion or copy of the affidavits, or undertaking required by § 17, supra, has ever been served on the comptroller, in my judgment the application for a writ of certiorari was not made in time.

The contention of the relator is, although the comptroller had already heard and passed upon the application to revise and- correct the taxes imposed April 6, 1891, and rendered his decision on such application June 9, 1891, and although the time to review said decision by certiorari under § 17 had passed by, yet under said § 19 a new application may be made to the comptroller to revise the decision of June 9, 1891, and from his order declining to revise certiorari lies, under which the former ruling of the comptroller may be reviewed.

In other words, that under § 19 the comptroller may repeatedly revise and readjust taxes. It would follow, that after the decision of the present motion the relator might make a new application to the comptroller for a review, and from his decision declining to review certiorari would lie, under which could be reviewed all former orders.

I do not think that such construction can properly be given to § 19. It was intended by that section to give to the comptroller the power to revise and readjust a tax by him previously imposed. But when any tax or .account has been so revised and readjusted, and the comptroller has rendered his decision thereon, the power conferred by the said section is spent. The decision rendered by the comptroller on the application to revise and readjust a tax, I think, should have the force of a judgment rendered by a court. See Osterhoudt v. Rigney, 98 N. Y., 236; People ex rel. Myers v. Barnes, 114 id., 326; 22 St. Rep., 164.

It is proper that parties should at some time after the imposition of the license tax have an opportunity to be heard by the comptroller, but after such a hearing and a decision on the merits the judgment rendered by the comptroller should not be again opened.

But if the comptroller, under § 19, supra, could, on February 3, 1892, properly entertain the application of relator and set aside his former decision made on June 9, 1891, and reopen the matter for consideration, it does not appear that he ever exercised that power. He simply “ declined to malee any revision or any readjustmentHe did not set aside the decree of June 9, 1891. That judgment stands. The relator moved, under § 19, sufra, to open the decree and open the judgment hereinbefore rendered by the comptroller on the merits of the case. The comptroller heard the motion and denied it, leaving the former judgment in full force. If the comptroller could have reopened the case, once decided by him, he was not bound to do so. It cannot be held that he is compelled to hear and review on the merits on substantially the same state of facts a motion to revise the taxes which he had once heard and passed upon. I think, therefore, that even if the comptroller had the power, under § 19, supra, to entertain and consider on its merits a second application to revise the tax which he had already passed upon, that he was not bound to do so, and that the writ will not lie to review his determination in this regard. No mistakes or errors or sufficient grounds, were stated to open the judgment.

It was an application on the merits made upon substantially the same facts as presented on the application that had be.en already heard and passed upon. The comptroller properly declined to set aside his former decision. If his determination can be reviewed and on such review the proprietyof the decision of June 9, 1891, can be considered by this court, the provisions of § 17, supra, requiring certiorari to be applied for within thirty days, would have no force whatever.

We are, therefore, prevented from considering this case upon its merits.. If we were permitted to do so the question involved is an interesting one. I think the case differs from that of People exrel. Edison Electric Light Co. v. Wemple, considered at the last term. 44 St. Rep., 702. In that case we determined that a corporation located in this state, whose capital is invested in patent rights extending over this and other countries, being engaged in the sale of such rights, although on such sale it received instead of money the stock of local corporations outside of the state of New York, nevertheless employed its capital within this state.

But in this case the relator, a casualty insurance company, doing business in other states, has deposited in Pennsylvania, in Canada and Illinois a certain.portion of its capital in connection with its business in those places. The only way that the capital of relator is used is as security to those doing business with it, and its claim is that that part of its capital which it places outside of the state for the purpose of enabling it to do business in such places is in fact capital used outside of the state and cannot be deemed used within the state. The position is plausible. On the other hand it is suggested that the property placed by the relator in Pennsylvania, Illinois and Canada, although a part of its capital, in fact is merely deposited in those places and is not in any just sense employed outside of the state. But for the reason above suggested this question is not properly before us, the relator having neglected to make application to review the action of the comptroller within thirty days from the date of his decision.

The writ of certiorari should be quashed and the proceedings of the comptroller affirmed, with costs.

Mayham, P. J., and Herrick, J., concur. ,  