
    In the Matter of the Estate of Oscar S. Foster, Deceased. Albert O. Foster as Executor, etc., of Oscar S. Foster, Deceased, Appellant; State Tax Commission, Respondent.
    
    
      
       Affd., 263 N. Y. 639.
    
   Per Curiam.

On the facts disclosed in this record the assessment of the shares of the corporation upon the sole basis of the book value is unfair. Some effect should be given to the earning capacity of the corporation as showm by actual results. (People ex rel. K. F. Insurance Co. v. Coleman, 107 N. Y. 541.) We think a proper result in this ease is reached by giving equal weight to the valuation based on book value and to that based on earning return at eight per cent, and we, therefore, fix the value of the shares at $161.56. All concur, except Edgcomb, J., who dissents and votes for affirmance. Order modified on the facts by fixing the value of the stock in question at $161.56 per share, and as so modified affirmed, without costs of this appeal to either party [146 Misc. 393.]  