Opinion
April Term, 1901.
Present — Van Brunt, P.J., O'Brien, Ingraham and McLaughlin, JJ.
Order affirmed, with ten dollars costs and disbursements on opinion of the court below.
The following is the opinion of Freedman, J., delivered at Special Term:
This is a proceeding taken by a certiorari to review an assessment under section 7 of chapter 908 of the Laws of 1896, upon capital invested in business by the relator, a non-resident corporation in the State of New York. From the return made herein by the tax commissioners it appears by the testimony taken upon the hearings had before them that the relator, in December, 1892, filed with the Secretary of State of New York the usual certificate required by law, in which it declared its intention of transacting business in the State of New York, and designating the city of New York as the principal place for the transaction of such business within the State. It further appears that the relator occupies a large warehouse for the sale of its manufactured goods at No. 347 Washington street, in the city of New York; that it there has a general manager and an office force; that it keeps a bank account in this city in which it deposits the sums received from the sales of goods in this State, and from which it pays the expenses of conducting its business. It also appears that the corporation has traveling salesmen who sell its goods in this State; that these salesmen, as well as the office force, are employed and discharged by the general manager aforesaid; that all the goods sold in this State are delivered from the New York warehouse; that part of those goods are sold upon credit, the accounts due therefor being payable at the New York office, and that such business has been carried on in practically the same manner for a period of twelve years past. The assessment against the relator was made up from the following items, of the correctness of which there is no dispute: Amount due for goods sold within this State and payable at the New York office, $41,662.51; merchandise on hand, $25,000; furniture and fixtures, $1,500; cash on hand and in bank, $808.77 — $68,971.28. The facts clearly show that the relator has established and conducted a continuous business within this State, and it is thus brought directly within the decisions in the cases of People ex rel. Armstrong Cork Co. v. Barker ( 157 N.Y. 159); People ex rel. Crane Co. v. Feitner ( 49 App. Div. 108), and People ex rel. Collar Co. v. Feitner ( 31 Misc. Rep. 553). Neither is the relator entitled to a reduction of its assessment upon the ground of its alleged indebtedness for unearned salaries of its employees, or for rent, as no liability therefor, on the part of the relator, existed at the time the assessment was made. The writ must, therefore, be quashed, with costs against the relator.