
    The People of the State of New York ex rel. Port Morris Land and Improvement Company, Appellant, v. Martin H. Glynn, as Comptroller of the State of New York, Respondent.
    
      People ex rel. Port Morris L. & I. Co. v. fflynn, 148 App. Div, 908, modified.
    (Argued April 30, 1912;
    decided May 7, 1912.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 20, 1912, which affirmed, on certiorari, the proceedings of the defendant in assessing franchise taxes on the relator for the years ending October 31, 1907, and 1908.
    
      Ethelbert I. Low, Robert W. de Forest and Benjamin B. C. Low for appellant.
    
      Thomas Carmody, Attorney-General {Henry Selden Bacon of counsel), for respondent.
   Per Curiam.

It appears from the record that in the year 1906 there was distributed to the stockholders the sum of $575,000; that $250,000 thereof was paid to them upon the surrender of one-half of their capital stock, to wit: $250,000, the company’s capital having been depleted in that amount; the balance paid to the stockholders, amounting to $325,000, we regard as a dividend upon which the tax should be computed. As to the year 1907 no facts appear upon the record by which we can determine that there was any depletion of capital, and, therefore, must treat the payments as a dividend and taxable accordingly.

Order of the Appellate Division modified by reducing the assessment made by the comptroller, pursuant to chapter 908 of the Laws of 18Q6 and acts amendatory thereof, for the year ending October 31, 1906, from $14,375 to $8,125, and as so modified the assessment, together with the assessment for .the year ending October 31, 1907, is affirmed, without costs to either party.

Cullen, Ch. J., Gray, Haight, Vann, Werner, Hiscock and Collin, JJ., concur.  