
    In the Matter of the Appraisal under the Act in relation to Taxable Transfers of Property, of the Property of Robert Glendinning Deceased. Ellen E. Glendinning and Others, as Executors, etc., of Robert Glendinning, Deceased, Appellants; Erastus C. Knight, Comptroller of the State of New York, and Bird S. Coler, Comptroller of the City of New York, Respondents.
    
      Won-residents seat in the Wew York Stock Exchange—it is subject to the transfer tax.
    
    A seat or membership in the New York Stock Exchange of a non-resident of the State of New York, upon the death of such non-resident, is subject to a transfer tax in the State of New York.
    Appeal by Ellen E. Glendinning and others, as executors, etc., of Robert Glendinning, deceased, from an order of the Surrogate’s ■Court of the county of Mew York, entered in said.Surrogate’s Court ■on the 20th day of Movember, 1901, affirming upon appeal an order ■of- the Surrogate’s Court, entered upon the report of an appraiser, fixing and assessing the tax upon the transfer of the property of the decedent.
    
      William O. Arnold, for the appellants.
    
      Julius Offenbach, for the respondents.
   Van Brunt, P. J.:

The single question to be determined upon this appeal is whether a seat or membership in the Mew York Stock Exchange of a non. resident of this-State is taxable under the law in relation to taxable transfers. This depends entirely upon whether such a seat in the Mew York Stock Exchange is to be considered as personal property. We do not think, in view of the decision of the Court of Appeals in People ex rel. Lemmon v. Feitner (167 N. Y. 1), that this question is open to discussion.

It is true that the appellants seem to rely upon this authority as sustaining their proposition. But an examination of the opinions delivered by the court in that case shows that although such a seat in the Mew York Stock Exchange is not personal property under the restricted definition of the Tax Law (Laws of 1896, chap. 908, § 2, subd. 5, as amd. by Laws of 1901, chap. 490),- yet it is undoubtedly capital invested in business in this State which has a market value and can be bought and sold. If it is capital invested in business in this State, it is property, as it is difficult to see how capital invested in business, which has a market value and can be bought and sold, does not fall within the term “ property.” The restrictions under which this property is held in no way affect its character. They may detract from or add to its value. As was said by Mr. Justice Vann in the opinion in the case cited: “ The money used by him to buy his seat was neither thrown away nor-given away, but was paid for property of great value, which was the main instrumentality for carrying on the business in which he engaged. It is difficult for me to see what was done with the money unless it was invested.” These expressions of the learned judge clearly show that what was bought was property; and it appears that it can be sold and is of great value.

We think, under these circumstances, that the decree of the surrogate was right and should be affirmed, with costs.

Patterson, O’Brien and Laughlin, JJ., concurred. .

Decree affirmed, with costs.  