
    The People of the State of New York, Respondent, v. Boston and Maine Railroad, Appellant.
    
      Tax — mortgage tax — when tax payable upon new bonds secured by a corporate mortgage issued to pay matured bonds secured by same mortgage upon which a tax had been paid.
    
    
      People v. Boston & Maine Railroad, 202 App. Div. 54, affirmed..
    (Argued November 29, 1922;
    decided December 15, 1922.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 18, 1922, in favor of plaintiff, upon the submission of a controversy under section 546 of the Civil Practice Act. The question was whether the mortgage recording tax imposed by section 253 of the Tax Law applied to bonds secured by a corporate mortgage to a trustee and issued to pay matured bonds of the same amount and secured by the same mortgage with respect to which matured bonds a tax had been paid. The defendant on December 1,1919, executed to the Old Colony Trust Company as trustee a trust mortgage covering its real property to secure bonds in the aggregate principal amount of over $95,000,000. When the mortgage was recorded the recording tax was paid on the amount mentioned. Subsequently at different times the defendant under the provisions of said trust mortgage issued thereunder three series of bonds aggregating $21,558,000. The proceeds of these bonds were used to pay and discharge an equal amount of the former bonds. The Appellate Division held that a tax was payable.
    
      Robert E. Whalen for appellant.
    
      Charles D. Newton, Attorney-General (John J. McCall of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  