
    The People of the State of New York ex rel. Fort George Realty Company, Relator, v. Nathan L. Miller, as Comptroller of State of New York, Respondent.
    
      Tax — a domestic corporation which uses its capital in buying lifew Tm'k real estate employs it within that State — it should, be taxed for the part, of the year during ' which its capital has-been so employed.
    
    Where a domestic corporation organized for the purpose of acquiring, holding - and selling real estate in the city of New York, uses all the capital stock issued hy it in payment for unimproved real estate in the city of New York and for part of the proceeds of a mortgage upon such real estate, such use of the cap- ' ital stock constitutes an employment thereof within the State of New York, within the meaning of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558), and renders the corporation liable to a franchise tax. A corporation subject to a franchise tax, which has been in existence for but five and1 a half months of the year for which the tax is assessed, should not be required to pay the tax for the full year, but only for eleven twenty-fourths of that time.
    Certiorari issued out of the Supreme Court and attested on the 30th day of June, 1903, directed to Hathan L. Miller, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing the relator for a franchise tax for the year ending October 31, 1902, .upon its capital employed within the State during that year, under section 182 of the Tax Law. Theodore M. Taft, for the relator.
    
      John Cunneen, Attorney-General, and William H. Wood, for the respondent.
   Chester, J.:

The relator is a domestic corporation organized for the purpose of acquiring, holding and selling real estate in the city of Hew York. It was incorporated and commenced to do business about May 14, 1902. It has not paid or declared any dividends. It has a capital of $100,000, of which 994 shares of the par value of $99,400 have been issued. The amount issued was all used in payment of the purchase price of certain unimproved real estate in that city and for part of the proceeds of a mortgage upon such real estate. If that was not an employment of its capital stock within this State, within the meaning of section 182 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, chap. 558), which would subject it to taxation under that law, the relator is enjoying all the benefits of corporate existence, and is permitted to exercise its corporate franchises and carry on the very business for which it was incorporated without the payment of any franchise tax. The mere statement of the proposition, it seems to me, carries its own answer.

The relator relies upon People ex rel. Niagara Rimer Hydraulic Co. v. Roberts (30 App. Div. 180; affd., 157 N. Y. 676) in support of its contention that it employed no capital within the State. That was a case where the relator there, as appears by its act of incorporation, was formed for “ hydraulic and manufacturing purposes ” (Laws of 1832, chap. 116, § 1), and was by its charter made “ capable of purchasing, holding, leasing and conveying any estate, real and personal, for the use of the said corporation.” Its entire •capital stock was issued in payment of the purchase price of a certain island in Niagara river which was unimproved swamp land and unproductive, except that about forty-five dollars was received .annually for the grass crop. The court held, on the authority of People ex rel. Singer Mfg. Co. v. Wemple (150 N. Y. 46), that although its capital was invested here, such capital was not “ employed within this State” within the meaning of the statute, and, therefore, that it was not liable to the franchise tax. In the Singer case Judge Bartlett, who wrote the opinion of the court, said : “ We decide this case on its peculiar facts, and are not to be understood as in any way changing the rule laid down in People ex rel. Seth Thomas Clock Co. v. Wemple (133 N. Y. 323), that the •capital stock of a foreign corporation employed in this State is represented by the actual value of its property, whether in money or .goods or other tangible things.”

So also the capital stock of a domestic corporation means the property of the corporation contributed by its shareholders or otherwise obtained by it to the extent required by its charter. ( Williams v. Western Union Telegraph Co., 93 N. Y. 162, 168; Burrall v Bushwick Railroad Co., 75 id. 211.)

The capital stock of the relator, so far as issued, represented as it is by the property it purchased with that stock, in which purchase it was used in carrying out one of the purposes of ¡the relator’s corporate existence, was clearly employed by it in this. State, and cases such as that of Niagara River Hydraulic Co. (supra) and other kindred cases, where the capital exempted from taxation was not necessary to or used for the conduct of the business for which the corporations were organized, but actually withdrawn from such business and . otherwise invested, should not serve to exempt from taxation a corporation such as the relator, which comes within the express terms of the statute imposing the tax.

The relator also urges that the Comptroller has made an excessive valuation of its capital stock. He assessed it at a valuation of $99,400. He had before him the sworn appraisal of the treasurer and the secretary of the relator fixing its actual cash value at that amount, so that his assessment is not without ample evidence to support it.

The relator, however, had been in existence and exercising its corporate franchises only five and one-half months of the year for which it was taxed. The tax was laid for the entire year. It should have been apportioned upon the time it had exercised its corporate franchises. People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51.) The tax as laid, based upon a valuation of $99,400, at one and a half mills on the dollar for the entire year amounted, to $149.10. For five and one-half months at that rate 4t would be $68.34, and it should be reduced to that amount. '

Determination of the Comptroller modified by reducing the tax to sixty-eight dollars and thirty-four cents, and as so modified confirmed, with fifty dollars costs and disbursements tol the relator.

All concurred.

Determination modified by reducing the tax to sixty-eight dollars and thirty-four cents, and as so modified confirmed, with fifty dollars costs and disbursements to the relator.  