Argued October 5, 1898
Decided November 22, 1898
Charles J. Hardy for relator.
James M. Ward for defendants.
The appeals in this case present two questions. One is whether the Appellate Division correctly held that the value of the notes and accounts owing to the relator for property sold at the Murray street house was properly included in its assessment. The second is whether the goods and merchandise in its store on Murray street were properly assessed. The relator claims that neither was the proper subject of assessment in this state, while the defendants contend that both should be included.
The contention of the relator, that the Appellate Division erred in restoring the assessment as to its bills receivable for property sold at the New York house, cannot be sustained. A contrary doctrine was held in People ex rel. Yellow Pine Co. v. Barker ( 23 App. Div. 524), and that case was affirmed by this court on the prevailing opinion of the court below ( 155 N.Y. 665), so that the validity of that assessment is not an open question in this court.
This brings us to the consideration of the second question. The statute under which this assessment was made provides: "Non-residents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state." (Laws of 1896, chap. 908, § 7.) This is a substantial re-enactment of section 1 of chapter 37 of the Laws of 1855. The latter statute has been the subject of adjudication by this court in at least two cases.
In People ex rel. Parker Mills v. Commissioners of Taxes ( 23 N.Y. 242) it was held that the goods of a non-resident, sent to this state for the purpose of sale, without reinvestment of the proceeds, were not liable to taxation under the statute of 1855, and that that act was designed to reach the capital of non-residents employed within the state in a continuous business, and not property sent here only as to a market for sale. In the discussion of the question in that case, it was in effect said that the statute was intended to apply to foreign corporations, particularly to insurance companies, who establish agencies in the city of New York for the transaction of their corporate business, and to persons who were engaged in business in New York, having large amounts of property in the state, which escaped taxation under the rule that personal property is deemed to follow the person of the owner.
In People ex rel. Sherwin- Williams Co. v. Barker ( 5 App. Div. 246; affirmed by this court, 149 N.Y. 623) it was held that a foreign corporation, which had its principal office and manufactory in Cleveland, Ohio, and sent its manufactured goods to a salesroom in New York for sale, the proceeds of which, except a small amount to pay its office expenses, were remitted to Cleveland, was not liable to assessment for the amount of the goods usually kept on hand. If the facts in this case are like those in the cases to which we have alluded, it follows that the judgment of the Appellate Division must be affirmed.
The record in this case discloses that one of the directors of the relator and the manager of the Murray street house testified that the relator was incorporated under the laws of the state of Pennsylvania; that its home office was in Pittsburgh; that he was in business in the state of New York, and had filed with the comptroller of the state copies of the certificate of incorporation of the relator, giving the name of the company, its purposes of transacting business, and where the business of the company and its office in this state are located; that the certificate indicated the principal place of business as being at number 45 Murray street in the city of New York, and did not indicate any other place of transacting business in this state; that the company was engaged in the manufacture and sale of corks; that in the house at Brooklyn corks were manufactured from the raw material and sold from there, while in the Murray street house the goods were principally manufactured in Pittsburgh and sent here for sale, and that no manufacturing was done in New York city.
Section 15 of the General Corporation Law (Laws 1892, chap. 687) provides that no foreign or other than monied corporation shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in the state, and that no foreign stock corporation doing business here without such certificate shall maintain any action upon any contract made by it here until it has complied with the law. This statute then declares that before granting such certificate the secretary of state shall require such corporation to file in his office a sworn copy of its charter or certificate of incorporation, and a statement under its corporate seal particularly setting forth the business or objects of the corporation which it is engaged in carrying on, or which it proposes to carry on within the state, and a place within the state which is to be its principal place of business, and designating a person upon whom process against the corporation may be served within the state in the manner prescribed by the Code. (§ 16.)
This evidence shows quite distinctly not only that the relator intended to do business as a corporation within the state, but that it intended that its principal place of business should be at 45 Murray street in the city of New York. This evidences a plain intent on the part of the corporation and its officers to establish a continuous business in the city of New York and not one of a temporary character. The distinction between this case and the cases to which we have referred lies in the fact that it was the purpose and intent of the relator to establish a permanent and continuous business in the state of New York, which included both the manufacture and the sale of goods manufactured, and in the fact that it designated its principal place for the transaction of such business as 45 Murray street in the city of New York. It is true that a large portion of the property sold at the Murray street house was manufactured in Pittsburgh, yet it also sold merchandise manufactured in this state. Under these circumstance we are of the opinion that the commissioners were justified in holding that the relator had invested in this state an amount equal to the value of the merchandise it had on hand, and that it was invested for the purpose of carrying on a somewhat permanent and continuous business here.
Thus, this case is clearly distinguishable from the cases to which we have adverted. We think the commissioners were justified in including in the relator's assessment the value of the merchandise on hand at its Murray street house as well as the amount of the notes and accounts owing to it for property sold, and that the Appellate Division erred in refusing to restore the assessment to its original amount.
The order of the Appellate Division should be modified by restoring the assessment of the relator to its original amount as fixed by the defendants, and as so modified affirmed, without costs to either party.