
    The People of the State of New York ex rel. Southern Cotton Oil Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.
    
      Franchise tax on a foreign corporation ■—orders obtained through commission merchants subject to approval in the foreign State— consignments to be sold for cash.
    
    A foreign corporation obtaining, through brokers carrying on business in the State of Mew York, orders for goods which are sent to it for approval, and when approved are filled by the transmission of the goods direct from its factory in the foreign State,, is not doing business within the State of Mew York ■ within the purview of chapter 542 of the Laws of 1880.
    The fact that such a corporation consigns a portion of its goods to the brokers, its agents, and that sales are made in the State of Mew York from such goods, either directly at a price fixed by the corporation or in fulfillment- of orders approved by it, the proceeds being deposited to the credit of the corporation in a bank in the State of New York, and the charges of the brokers being paid by check after the deposit instead of being deducted before the deposit, does not change the situation. " ■
    CertioEari issued out of the Supreme Court and attested on the* 23d day of July, 1897, directed to James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing .upon the relator a business or franchise tax under chapter 542 of the Laws of 1880, and the acts amendatory and supplemental thereto.
    
      W. W. MacFarland, for the relator.
    
      T. E. Hancock, Attorney-General, and G. D. B. Hasbrouck, Deputy Attorney-General, for the respondent.
   Merwin, J. :

The relator is a foreign corporation organized under the laws of the State'of New Jersey, and has its principal place of business, at Philadelphia, in the State of Pennsylvania. The .tax in question was for the year ending November 1, 1893. During that year the relator was engaged in thé manufacture of cotton seed oil and other products of cotton seed, all its factories being situated outside of the. State .of New York. Prior to September,-1892, the relator had an office in this State, but it was then discontinued and an arrangement made by it with Whitman Brothers, a firm of commission merchants and general'merchandise brokers, who had. a place of business in New York city. By this arrangement, Whitman ' Brothers had the selling agency of the relator in New York and the eastern markets' for crude and refined oil, and also for the sale of oil for foreign markets, and for compensation had a commission of a certain per cent on the amount of sales. Under this arrangement Whitman Brothers obtained orders for goods and sent them to-the relator for approval. If approved, they -were filled, in the majority - of cases, by shipment direct from the manufacturing establishment to the place of consumption. The. relator also consigned to Whitman Brothers some of' its goods for sale if a named price could be obtained. Thesfe consignments averaged 400 or 500 barrels of oil a month, of the value of from $17 to $20 a barrel. Some of the sales of these consigned goods were for consumption in Hew York State. All were made in the original packages. It may be inferred that some of the orders that were sent to the home office for approval were, if approved and a speedy delivery desired, filled from the goods consigned. The title of the consigned goods remained in the relator until delivered to the buyer. The relator had a bank account in Hew York made up of deposits of proceeds of sales by Whitman Brothers, or from money borrowed at the bank. The drafts on this bank account were from the Philadelphia office, and the money was all used by the relator in its business outside of the State, except that Whitman Brothers were paid their charges by check out of the proceeds of sale.s, such check being drawn by the home office. The average amount of deposits between January 9, 1893, and January 8, 1894, was about $38,900. The business through Whitman Brothers was chiefly exports. The relator had no. office or place of business in this State. The sales were for cash. The capital of the relator is $4,000,000.

The claim of the relator is, that it is not doing business in this State within the meaning of the statute. The 'solution of this question depends upon the construction to be given to the dealings between the relator and Whitman Brothers.

It is quite clear that the obtaining by Whitman Brothers of orders for goods, sending such orders to the relator for approval, and the filling of the approved orders by transmission of goods direct from the relator’s factories, is not, within the adjudications on that subject, doing business within this State within the purview of the statute. (People ex rel. Washington Mills Co. v. Roberts, 8 App. Div. 201; affd., 151 N. Y. 619 ; Tallapoosa Lumber Co. v. Holbert, 5 App. Div. 559; People ex rel. Lembeck & B. E. Brewing Co. v. Roberts, 22 id. 282, and cases cited.)

There is, however, in this case something further to be considered. The relator consigns a portion of its goods to its agent, the commission merchant, for sale. Sales are here made from such goods, either directly at a price as directed by the relator*, or in fulfillment of orders approved by the relator. The proceeds are deposited to the credit of the relator in- a bank here. Do these additional facts authorize the conclusion that the relator is doing business within the State ?

The goods consigned to the commission merchants were in their possession and control, and their disposition in accordance with, the directions of the relator was a part of their business, not the business of the relator. A commission merchant has ordinarily a fight . to sell in his own name. (Story’s Agency, §§ 33, 34.) As to the public, he is the dealer.

It should " not, I think, be held that the consignment of goods by a non-resident manufacturer, to a-resident commission merchant for cash sale constitutes a doing of business by the manufacturer within this State within the meaning of. the statute. (Bertha Zinc & Mineral Co. v. Clute, 7 Misc. Rep. 124.) The method adopted here for the transmission of the proceeds does not materially change the situation. For does the fact that the charges of the commission merchants or.agents were paid by check after the deposit instead of being deducted before the deposit.

In this view of the character and effect of the dealings between the relator and Whitman Brothers, coupled with the fact that the relator has here no office or place of business, thé conclusion is reached that the.relator was not subject to the tax in question.

All concurred.

Determination of. the Comptroller reversed, with costs.  