
    People ex rel. Commonwealth Insurance Company of New York, Resp’t, v. Michael Coleman et al., Commissioners of Taxes, etc., App'lts.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    Taxation—Value of capital stock op cobpobation — Appeal fbom ASSESSMENT—COMMISSIONERS BOUND BY COMPUTATION OP SUBPLUS MADE WHEN ASSESSMENT FIXED.
    On an appeal from a decision declaring an assessment erroneous (in proceedings taken by certiora/ri to review the action of the commissioners of taxes of New York city in assessing the capital stock of the relator), because they did not deduct from the net surplus an amount equal to ten per cent of the capital of the company; the commissioners cannot he heard to' say that the deduction made in arriving at? the net surplus was erroneous and should not have heen made. They are hound hy the deductions they did make.
    Appeal from a judgment of the supreme court, general term, first department, reversing an order of a special term made in certain proceedings taken by certiorari to review the action of the • commissioner of taxes in assessing the capital stock of the relator.
    
      D. J. Dean, for app’lts; Joseph Lorocque, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 940.
    
   Andrews, J.

We think the question which the appellants seek to have determined, viz.: whether in estimating "the property of an insurance company for the purpose of taxation, any deduction is to be made on account of unearned premiums, and whether they are to be considered to any extent as debts or liabilities of the company, does not arise and cannot be decided on this record.

It appears from the return of the commissioners of taxes that they fixed the valuation of the capital stock and net surplus of the relator at $321,219, according to the report of the insurance department of the state, to which they refer. Reference to the report shows that this sum was arrived at hy valuing the capital stock of the relator at $300,000, its par'value, and its net surplus at $21,219. The net surplus was ascertained by deducting from the sum of $45,885.21, the gross surplus liabilities for unearned premiums amounting to $24,666.16. This left the net value of its assets as -estimated, the sum before mentioned, viz.: $321, 219.

From this aggregate the commissioners deducted United States bonds held by the company to the amount of $304-, 577,. leaving a balance of $16,644, which latter sum was fixed by the commissioners as that for which the relator' was liable to taxation. This sum represented part of the surplus of $21,219, as ascertained by the commissioners, and as by chapter 456 of the Laws of 1857 only that part of the surplus of the relator exceeding ten per cent of its capital was liable to taxation, the assessment of any part •of it was plainly erroneous. The commissioners cannot now be heard to say that the deduction made in arriving at the net surplus of the unearned premiums was erroneous and should not have been made. They did make the-deduction and are bound by it. They can neither increase nor diminish, at this stage, the valuation upon which the assessment proceeded. Nor can their error be obviated by proof that the surplus was in fact much larger than was ixed by them. The regularity of the assessment is to be determined on the basis that the full net surplus was $21,219.

We think the order appealed from is right, and it should therefore be affirmed.

All concur.  