Petrasch Burnet, for relator.
George L. Rives, Corporation Counsel (A.T. Campbell, Jr., of counsel), for defendants.
The relator, a foreign corporation, complains of its assessment for the purposes of taxation, and has sued out a writ of certiorari to obtain a vacation or reduction thereof. In its statement to the commissioners the relator stated that it was organized under the laws of the State of Ohio, having its principal office at Lockland in that State; that it had complied with the provisions of chapter 687, Laws of 1892, being the General Corporation Law, under which foreign corporations are required to obtain a certificate from the Secretary of State as a condition of doing business in this State; that 70 Cortlandt street, New York city, was indicated as its principal place of business within this State; that there was nothing receivable on notes and open accounts in the State of New York; that the value of goods, wares and merchandise in process of distribution in the State of New York was estimated at $2,000; the value of its safes, fixtures and furniture in the city of New York was $100, and the cash on hand and in bank was $100; that the amount invested in business in the State of New York was "none except as above." Accompanying this statement was a letter from relator's attorneys, a copy of which is annexed to the petition, and thus adopted by the relator. In this letter the following statement is made bearing upon the taxability of the company: "The value of the goods, wares and merchandise is necessarily estimated, as such goods, wares and merchandise are kept in storage or in transit in the city of New York merely for the purpose of distribution to customers here. The Philip Carey Company is a corporation of the State of Ohio engaged in the manufacture of pipe and boiler covering and roofing at Lockland, Ohio, where it has its principal office and manufactory. It has a sales or storage-room in the city of New York to which it sends its manufactured goods to be sold or distributed. The proceeds of the sales of these goods are remitted to the principal office of the company in Ohio." As this letter was written for the purpose of inducing the tax commissioners not to assess the relator, it may be assumed that all the facts are stated which would so induce the commissioners, and that the facts were stated as favorably to the relator as strict accuracy would warrant. At all events the statement and letter were what the commissioners acted upon, and it is upon the facts as stated therein that the legality of the assessment must be tested. The commissioners assessed the relator at the sum of $2,200. The case as made out by the relator upon its own showing does not differ in its essential feature from that considered by the Court of Appeals in People ex rel. Armstrong Cork Co. v. Feitner, 157 N.Y. 159. In that case the court held that the evidence before it showed a plain intent on the part of the corporation and its officers to establish a continuous business in the city of New York, and for this reason distinguished the case then before it from People ex rel. Parker Mills v. Commissioners, 23 N.Y. 242, and People ex rel. Sherwin Williams Co. v. Barker, 5 A.D. 246; affd., 149 N.Y. 623. That the taxability of a foreign corporation upon property actually in this State depends upon the continuous nature of the business carried on here was recognized in the earliest case dealing with that subject under the law as it now stands (People ex rel. Parker Mills v. Commissioners, supra), wherein Judge Selden, writing for the court, gave as the determining reason why the relator in that case should not be assessed "that there is no sum invested or used for the purpose of carrying on a continuous business in this State." It is true that the Armstrong Cork Company case differs from the one at bar, in that in that case it appeared that the relator manufactured a part of its goods in this State. But as was pointed out in People ex rel. Crane Co. v. Feitner, 49 A.D. 108, the Court of Appeals did not apportion the value of the goods manufactured here and in Pennsylvania, nor did it treat the isolated fact that some part of the goods were manufactured here as controlling its decision, but plainly regarded it merely as one of a group of evidential facts bearing upon the intent of the corporation to conduct a regular and permanent business in this State. It appears in this case, as it appeared in the more recent of the cases above cited, that the relator had procured from the Secretary of State the certificate prescribed by section 15 of the General Corporation Law, as a prerequisite to doing business in this State. The relator earnestly argues that that fact does not render it liable to assessment and taxation. I do not understand that it has ever been held that evidence of compliance with the statute by a foreign corporation, standing alone, renders the corporation liable to be taxed. But it is an evidentiary fact to be taken into account, and when it appears that such a corporation, in addition to taking out such a certificate maintains an office, salesroom and storage-rooms in this State and keeps goods here for the purpose of sale, and does sell them within the State, a strong case is made for believing that the corporation is carrying on a continuous and permanent business here. I find myself quite unable to distinguish the present case from those above referred to and others in which a similar assessment has been sustained.
The writ must, therefore, be dismissed, with costs.
Writ dismissed, with costs.