
    The People of the State of New York ex rel. The Weber Piano Company, Respondent, v. James L. Wells and Others, as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    
      Assessment for tarnation of the capital stoclc of a corporation, whose real property is subject to a mortgage which it is not obligated to pay -¡- the value of the equity of redemption only is covered by the assessment, from which is deducted the assessed ■ value of the real property.
    
    Under section 12 of the Tax Law (Laws of 1896, chap. 908), which provides, “ The capital stock of every company liable to taxation, except such part of it as shall- have been excepted in the assessment-roll or shall be exempt by law, together with its surplus profits or reserve funds exceeding ten per centum of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are tax- . able upon their capital stock under the laws of this [State, shall be assessed at its actual value,” a domestic corporation owning real estate, incumbered b.y a. mortgage which has not been assumed by the corporation, is entitled to have the assessed valuation of such real estate deducted from the value of its capital stock in determining the assessable value of such capital stock notwithstanding-that in determining the value of its capital stock its equity in the real estate-was alone considered.
    Van Brunt, P. J., and McLaughlin, J., dissented.
    Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of March, 1904, vacating an assessment upon the capital stock of the relator for the year 1903.
    
      George S. Coleman, for the appellants.
    
      Henry Warren Beebe, for the respondent.
   Laughlin, J.:

The question of law presented for decision by this appeal is,, whether a domestic stock corporation which owns real estate subject, to a mortgage, it not being liable for the indebtedness thus secured, is entitled to have the assessed valuation of the real estate deducted from the value of its capital stock in determining the assessable, value of the capital stock where its equity in the real estate only was considered in determining the value of the capital stock. The, statutory provision under which the capital stock of such a corporation is assessed is section 12 of the Tax Law (Laws of 1896, chap. 908), which provides as follows: The capital stock of every company liable to taxation, except such part of it as- shall have been excepted in the assessment-roll or shall be exempt by law, together-with its surplus profits or reserve funds exceeding ten per centum, of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws, of this State, shall be assessed at its actual value.”

A compliance with this statute manifestly requires, in the first, instance, that the value of the capital stock of the corporation shall be determined. This requires a consideration of its assets and liabilities. In case it owns real estate with an outstanding mortgage,, upon which it is not liable, it is clear, I think, that the real estate constitutes an asset merely to the extent of the equity of the corporation in the land. Therefore, I think the assessors were right in adopting the value of this equity, rather than the value of the land, in first ascertaining the assets of the corporation. That is the whole question, because the Legislature commands that the assessed value of the real estate shall be deducted from the value of the capital stock. This is, I think, the true construction of the statute. The Legislature intended that the real and personal property of such a corporation should be assessed at its fair and true value, the same as the property of an individual, with the exception that it does not provide for a deduction from the individual’s personal property of the amount of any mortgage that may be a lien upon his real estate, unless he is liable for the indebtedness secured by the mortgage. This omission may have been made on account of the fact that all personal property of corporations is reached for taxation, but only a small percentage of the personal property of individuals. Inasmuch, however, as the capital stock of a corporation represents all its property,^both real and personal, it was necessary that the valuation should be ascertained in a manner different from that employed in the case of an individual. The Legislature, therefore, directed that the value of the capital stock, which represents the value of all the assets of the corporation, including both real and personal property, should be first ascertained; and, instead of directing that this amount be assessed against the capital stock and providing that the real estate should not be assessed at all, it directed that this should he the total amount of the assessment to be paid by the corporation, but that that part of it which is to be paid by, the real estate should be deducted from the total, leaving the balance to be assessed against the capital.

It follows, therefore, that the order should be affirmed and the proceeding dismissed, with fifty dollars cost and disbursements.

Pattebson and Ingbaham, JJ., concurred; Van Brunt,' P. J., and McLaughlin, J., dissented. . "

Van Brunt, P. J. (dissenting):

This proceeding was commenced for the purpose of procuring the vacation of an assessment made upon the respondent’s capital stock. It appears that the respondent is a domestic corporation and had been assessed for taxation for the year 1903 by the deputy •commissioner of taxes in the sum of $600,000. Subsequently the respondent filed a statement with the commissioners of taxes and assessments, by which it claimed to show that its total assets were $587,794, of which there was real estate worth $160,000 and personal property, $427,794; that the amount actually paid for the real estate was $240,000; arid the actual value as carried upon its books was $220,000, and the actual value of personal property carried on its books as an asset was $475,472. The company was indebted in the sum of $387,732, and the assessed value of its real estate was set forth at $215,000. The real estate consisted of three parcels, on one of which was a mortgage of $200,000, for which the •company was not liable, and it was the equity only in this property which was figured as an asset in the amount of gross assets, while the total assessment upon the property was deducted under the provisions of law allowing for the deduction of the assessed value of real estate. The real estate in question was worth $250,000; the equity, therefore, was $50,000, which only was included in the ■assets.

The statute under which the assessment is made (Tax Law [Laws of 1896, chap. 908], § 12) reads as follows: “The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll or shall be exempt by law, together with its surplus profits or reserve funds exceeding ten per centum of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value.” ,

The question which is presented here is whether the relator was entitled to only place the equity which it owned in the real estate in question among its assets, and to deduct the total assessment upon the real estate in question; in other words, whether it was entitled, after crediting the $50,000 as the value of the real estate among its assets, to deduct $150,000, the assessed value.

We think the learned court below erred in allowing such a con'•struction of the statute. The clear intention of the Legislature in these regulations was not to assess as part of the capital stock that, portion of the assets of the corporation which had already paid a. tax. Thus, in the case at bar, the real estate in question being worth $250,000, and the relator having paid a tax upon $150,000, it should not be reassessed upon that $150,000. The interpretation of this; act made by the court below would bring about <a result which clearly was not intended. For example, if a' corporation had personal property of $1,000,000, and had equities in real estate amounting to $1,000,000 (the total value of the real estate being $3,000,000, but subject to mortgages of $2,000,000), this real estate. being-assessed at $2,000,000, the corporation owning $2,000,000 of property over and above all its debts and liabilities, would be exempt, from taxation upon its capital if it had a right to deduct the total amount of the assessed value of this real estate. Not only would its capital stock to the extent of $1,000,000 invested in- real estate-escape taxation, but also it would escape taxation upon its $1,000,000' of personalty.

We think, therefore, that if only the equity which the r elator had in this real estate was to be considered and assessed, it could only deduct the proportion of the tax paid by it on its real estate which this equity bore to the value of the real estate. It would appear,, therefore, that there was no error whatever in the assessment which was detrimental to the respondent.

The order in the court below should be reversed, with costs, and the proceeding dismissed.

McLaughlin, J., concurred.

Order affirmed, with fifty dollars costs and disbursements.  