
    Third' Department,
    March, 1940.
    (March 6, 1940.)
    The People of the State of New York ex rel. Charles E. Nauss, Florence T. Nauss (Formerly Florence T. Felter), Frederick G. Nauss, Wendolin J. Nauss, and Charles E. Nauss and Florence T. Nauss (Formerly Florence T. Felter), as Trustees under the Last Will and Testament of Wendolin J. Nauss, Deceased, for a Writ of Certiorari, Relators, v. Mark Graves and Others, as and Constituting the State Tax Commission of the State of New York, Respondents.
   Hill, P. J.

(dissenting). Relators by devise became the owners as tenants in common of several pieces of real property in the city of New York. They employed an agent to look after the details in connection with the leasing of these properties, the collection of rents and the general management. As agent he deposited rentals in a bank account maintained in the name “ Nauss Interests ” and paid therefrom all expenses. The gross annual rentals exceeded $90,000. The annual payroll for the agent and his assistants was about $4,400; $736.85 was received from a lighting company for the use of fixtures which had been installed in one of the properties by a tenant. These came into the possession of the owners when the tenant who installed them became bankrupt. They were used in connection with the distribution of electricity to the tenants in that particular building. A surplus of about $15,000 was built up, probably against repairs and replacement, a part of which was kept in the Nauss Interests ” bank account, and a part invested in government bonds.

I do not regard that relators were engaged in a trade or business. Rather they were managing then- privately owned real property. I favor an annulment.  