PEOPLE ex rel. THE BAY STATE SHOE AND LEATHER CO. v. McLEAN

PEOPLE ex rel. THE BAY STATE SHOE AND LEATHER CO. v. McLEAN. New York Supreme Court, Second Department; Special Term, October, 1878. Assessment. — Striking erom Assessment Boll. — Foreign Corporations. — Place in which Property must be Assessed. Foreign corporations are embraced within the provisions of chapter 37 of the laws of 1855, prescribing the manner in which “all persons and associations doing business in the State of New York, and not residents of this State, ” shall be taxed. The property of a foreign corporation must be assessed in like manner as if it were a resident, or domestic corporation, — viz., in the town or ward “where the principal office or place for transacting its financial concerns shall be,” — and it cannot be taxed or assessed elsewhere. A manufacturing corporation, created under and by virtue of the laws of Massachusetts, doing business within this State, and having its “principal office or place for transacting its financial concerns” in the city of New York, had machinery temporarily in another town, where it had been assessed by the assessors of that town. Held, that such assessment was erroneous, since the company had no “principal office or place for transacting its financial concerns ” within said town. Where the court is asked to affirm or reverse, correct or modify, the assessment roll, which has been brought before the court, the court may order the officer in whose custody it is, to strike an assessment from the roll. Certiorari to review an assessment upon tlie personal property of the relator. The error alleged was that the defendants, Thomas McLean and others, the assessors of the town of Ossining, county of Westchester, had no power or authority, under section 6, of article 1, title 2, chapter 13, part 1, of the revised statutes, as amended by the laws of 1855, to assess the property of the relator, a foreign corporation having its “principal office or place for transact-ting its financial concerns ” in the city of New York, and that such assessment was illegal and void. The relator is a foreign corporation, created under and by virtue of the laws of Massachusetts, doing business within this State, and having its only “office for transacting the financial concerns of the company,” at 93 Chambers street and 71 Réade street, in the city of New York. It is also the owner of certain materials and machinery situated within the precincts of the state prison at Sing Sing, in the town of Ossining, county of Westchester, used for the manufacture of boots and shoes, by the labor of convicts in said prison, and such materials and machinery are there temporarily for that purpose. The assessors of the town of Ossining assessed this property as against one Thomas Hap-good, claiming that said Hapgood was the agent of said company, as follows: “Hapgood, Thos., for property in his possession as agent for the Bay State Shoe and Leather Company, stock and machinery, .... $16,000.” After completing the assessment roll, notice was duly given of the time and place where appeals from assessments made would be heard. At the proper time and place the relator appeared, by attorney, and asked that the assessment against its property be stricken from the roll, on the ground that it was illegal and void. This application was denied. The relator then sued out a writ of certiorari to review the action of the. assessors. To this writ return was made that the roll had been duly certified and delivered by the assessors to the supervisor. A supplemental writ was then obtained, directed to the supervisor, directing him to produce the record before the court. It was claimed that the relator’s property could only be assessed under section 6 of the article of the revised statutes relating to “the place in which property is to be assessed,” whereas the assessment had been made in accordance with the provisions of section 5 of that article. Winfield, Leeds & Morse, for the relator. I. The relator’s property can only be assessed in the mode prescribed by the legislature, and in no other manner. (Wilson, v. Mayor, &c., 4 E. D. Smith, 675; S. C., 1 Abb. Pr. 4). II. The property of a foreign corporation must be assessed in like manner as if it were a resident corporation (Laws of 1855, chap. 37, § 1; British Com. Ins. Co. v. Commissioners, &c., 1 Keyes, 303; S. C., 1 Abb. Ct. of App. Dec. 199). III. The relator is a foreign corporation, and its property must be assessed in like manner as if it were a resident or domestic corporation. The assessment is made in accordance with the provisions of section 5 of the article of the revised statutes relating to “the place in which property is to be assessed,” viz., against the agent under whose control the property was, as claimed by defendants. The assessment, however, being against a corporation, could only be made in accordance with the provisions of section 6 of said article, viz., in the town or ward “where the principal office or place for transacting its financial concerns shall be” (1 Rev. Stat. [6th ed.] 935, as amended by Laws of 1855, chap. 37; British Com. Ins. Co. v. Comm’rs, &c., 1 Keyes, 303; S. C., 1 Abb. Ct. of App. Dec. 199). IV. Since the relator has “no principal office or place for transacting its financial concerns,” in the town of Ossining, county of Westchester, the assessors had no power or authority under the statute to assess its property there, and such assessment is therefore wholly unauthorized, illegal and absolutely void. Y. Since the assessors had no power or jurisdiction to make the assessment against the relator, their action may be reviewed by this court, as the supreme authority, and the assessment roll may be corrected in the hands of the supervisors at any time before it has passed beyond their jurisdiction (People v. Reddy, 43 Barb. 539 ; Starr v. Trustees of Rochester, 6 Wend. 565; Le Roy v. Mayor, &c., 20 Johns. 430; Wilson v. Mayor, &c., 4 E. D. Smith, 675). YI. Where the court is asked to affirm or reverse, modify or correct the assessment roll, which has been brought before the court, the judgment is rendered upon the record, and the court may order the officer in whose custody it is to correct it. Therefore, the answer of the assessors that the roll has passed out of their hands is insufficient (People v. Reddy, 43 Barb. 539). Marcius L. Cobb, for defendants. [MAJORITY — Dykman, J.] Dykman, J. The relator is a foreign corporation, having a principal office and place for the transacting of the business and financial concerns of the company in the city of New York. It has certain machinery and personal property in the possession and under the control of an agent at the state prison, at the town of Ossining, used in the manufacture of boots and shoes,, by convict labor, in the prison. The assessors of the town of Ossining have assessed their property to the agent in their assessment roll for 1878, under the provision of section 5 of article 1, title 2, chapter 13, part 1, of the revised statutes (1 It. 8. 6th ed. 934), which provides that every person shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, &c. Section 6 of the same article provides that all the personal estate of every incorporated company liable to taxation on its capital, shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be. It is entirely clear that the last section must control in respect to the place where the personal property of every incorporated company must be assessed, and that the same cannot be assessed in any other place, even though found in the possession of an agent. In the year 1855, a law was passed in this State providing that all persons and associations doing business in the State of New York as merchants, bankers, or otherwise, either as principals or partners, whether special or otherwise, and not residents of this State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this State, &c. This law placed foreign corporations on the same footing with domestic, and subjected them to the same mode of taxation as if they were residents within the State (British Comm. Life Ins. Co. v. Comm’rs, 1 Keyes, 303; 1 Abb. Ct. App. Dec. 202). There is no difficulty about striking this assessment from the roll, as that has been brought into this court by the supervisor in whose hands it now is (People v. Reddy, 43 Barb. 545). An order must therefore be entered directing the supervisor to strike this assessment from the assessment roll of the town.