Opinion of the Court, per HAIGHT, J.

[Vol. 147.

a substantial reproduction of sections 7 and 8 of chapter 902 of the Laws of 1869, which, as we have seen, have reference only to companies issuing registered policies and annuity bonds. They immediately succeed sections 73, 74 and 75, which also pertain to the same class of insurance. Section 76 refers to them as "such depositing corporations," and speaks of annuity bonds; thus, as we think, referring to that particular class of insurance, and not to insurance companies generally. If we are correct in this view, it follows that the provisions of section 76 have no application to casualty insurance companies, and that consequently there has been no change in the statutes affecting the right of the superintendent to retain the funds or securities deposited with him until the rights and equities of the policyholders are fully determined and adjusted.

We see no reason why the interest must not follow the principal. By section 14 of the act the corporation, so long as it shall continue solvent and comply with the laws of the state, shall be permitted by the superintendent to collect the interests or dividends upon its deposits. This, doubtless, has reference to a solvent corporation still continuing active business.. It has no application to a corporation that has ceased to exist and has been dissolved by a judgment of the court. Thereafter the superintendent holds the deposits or securities under the trust created by the statute for the benefit of the policyholders, and as such is entitled to collect the interest thereafter accruing and treat it as a part and parcel of the trust in his hands.

This motion does not conform to the provisions of section 72 of the act, and consequently it need not be here considered. The orders of the General and Special Terms should be reversed and the motion denied, but without costs to either party.

All concur.

Orders reversed.

THE PEOPLE ex rel. HECKER-JONES-JEWELL MILLING COMPANY, Appellant, . EDWARD P. BARKER et al., Commissioners of Taxes, etc., Respondents.

1. ASSESSMENT - FOREIGN CORPORATION— CERTIORARI QUESTION OF FACT. Where an assessment for taxation upon the property of a foreign corporation used in its business in this state involves a question of fact as to what indebtedness was actually incurred in the purchase of assets here, and the evidence submitted to the assessors was not so clear and convincing as to leave no doubt as to the fact; and the assessment itself depends upon the different kinds of property making up the assets, and it was not made plain what the true value of the assets was, and there is some evidence to support the determination of the assessors as to the true amount of the assessment, the Court of Appeals will not review and reverse such determination upon certiorari.

When a

2. ASSESSMENT - FOREIGN CORPORATION-SUMS INVESTED. foreign corporation doing business in this state purchases property here for its business and pays cash for a portion of it and promises to pay the balance at a future day, or pays no cash but promises to pay in the future, the amount still due upon the property is to be deducted from the value of the property, to ascertain the "sums invested" in this state, in applying the provision of chapter 37, Laws of 1855, that all non-resident persons and associations doing business in the state of New York "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." (People ex rel. Thurber- Whyland Co. v. Barker, 141 N. Y. 118, limited.)

3. CORPORATE STOCK. Stock issued by a corporation in payment for property is not a debt incurred by the corporation. People ex rel. v. Barker (86 Hun, 148), reversed.

(Argued May 20, 1895; decided October 8, 1895.)

APPEALS from orders of the General Term of the Supreme Court in the first judicial department, made April 11, 1895, which affirmed orders of Special Term dismissing writs of certiorari.

The facts, so far as material, are stated in the opinion.

John M. Bowers for appellant. The sum invested in this state by the relator was the surplus of its assets in this state after deducting the indebtedness incurred by it in the acquisition of such assets. (Clark v. Bailey, 12 Blatchf. 156; Wil

liams v. Bd. of Suprs., 78 N. Y. 561; People ex rel. v. Barker, 141 id. 118; 39 N. E. Rep. 1065; Thomas on Mort. 98; Conan v. Lakey, 80 N. Y. 345; Hitchcock v. N. Ins. Co., 26 id. 68; People ex rel. v. Comrs. of Taxes, 23 N. Y. 243.) The construction put upon section 1 of chapter 37 of the Laws of 1855 by the court below makes such statute unconstitutional and void. (Laws of 1788, chap. 65; R. S. art. 2, § 9; 1 R. S. [1st ed.] 387; Laws of 1891, chap. 178, § 2; Laws of 1823, chap. 262; Laws of 1857, chap. 456; People ex rel. v. Barker, 141 N. Y. 196; 25 N. Y. Supp. 340; Laws of 1855, chap. 37, § 1; Duer v. Small, 4 Blatclif. 261; Walling v. Michigan, 116 U. S. 446; Brown v. Houston, 114 id. 622; Wiley v. Parmer, 14 Ala. 627; Corfield v. Coryell, 4 Wash. [C. C.] 371, 380; Ward v. Maryland, 12 Wall. 419, 430; 15 id. 300; Maguire v. Parker, 32 La. Ann. 832; State v. Wiggin, 64 N. H. 508; Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434; Robbins v. S. T. District, 120 id. 489; Asher v. Texas, 128 id. 129; Brown v. Maryland, 12 Wheat. 419; Higgins v. Lime, 130 Mass. 1; P. &C. Co. v. Bates, 156 U. S. 577; State v. Furbush, 72 Maine, 493; State v. North, 27 Mo. 464; Paul v. Virginia, 8 Wall. 168; P. M. Co. v. Penn., 125 U. S. 181; County of Santa Clara v. S. & C. P. R. R. Co., 118 id. 394; Laws of 1892, chap. 687, 15, 16; Laws of 1880, chap. 542; Laws of 1895, chap. 240; Demarest v. Flack, 128 N. Y. 205; Lancaster v. A. I. Co., 140 id. 576; M. Co. v. Gage, 100 U. S. 676; S. Co. v. Port Wardens, 6 Wall. 31 ; P. T. Co. v. W. U. T. Co., 96 U. S. 1; G. F. Co. v. Pennsylvania, 114 id. 196; Com. v. S. O. Co., 101 Penn. St. 119.) On the face of the statement filed by the relator with the commissioners of taxes and without inquiry as to what proportion of its general indebtedness should be offset against its New York items, the assessment could not have been made at a greater sum than $730,000. (People ex rel. v. Barker, 139 N. Y. 55; 141 id. 251.) The relator was entitled to offer evidence showing how much of its indebtedness was due on account of the acquisition of its New York assets or incurred in the purchase

thereof. (Laws of 1880, chap. 269, § 4; In re Corwin, 135 N. Y. 252; People v. Comrs., 39 N. E. Rep. 385; People ex rel. v. Gray, 45 Hun, 243; People ex rel. v. Keator, 17 Abb. [N. C.] 369; People ex rel. v. Barker, 26 N. Y. Supp. 519; People ex rel. v. Zoeller, 15 id. 684; People ex rel. v. Barker, 22 id. 1043; People ex rel. v. Barker, 24 id. 63; People ex rel. v. Barker, 81 Hun, 22.) This appeal cannot be dismissed. (People ex rel. v. Tax Comrs., 144 N. Y. 483.)

David J. Dean for respondents. The relator is taxable for the sums invested by it in business in this state, even if it be in fact insolvent. (Laws of 1855, chap. 37; People ex rel. v. Barker, 141 N. Y. 118.) There is no force in the contention made by the relator that the words, "sums invested in any manner in said business," used in the statute of 1855, mean simply the sum of cash which the relator had on hand in this state at the time it commenced business. (People ex rel. v. Comrs., 23 N. Y. 242; Hitt v. Crosby, 26 How. Pr. 413; Scott v. De Peyster, 1 Edw. Ch. 513; M. Ins. Co. v. Suprs., 4 N. Y. 442, 448; People v. Suprs., 16 id. 424, 439; People ex rel. v. Coleman, 126 id. 433, 439; People ex rel. v. Wemple, 138 id. 582, 588; People ex rel. v. Barker, 141 id. 196, 197; People ex rel. v. Barker, Id. 118; People ex rel. v. Barker, 145 id. 239.) There was no error in excluding the testimony which the relator sought to introduce at the Special Term. (Laws of 1880, chap. 269, § 4.) As to the proceeding relating to the taxes of 1893, the testimony taken before the referee for the reason that it was not before the commissioners when they made their assessment, or offered to them, should be disregarded. (People ex rel. v. Barker, 75 Hun, 6; People ex rel. v. Tax Commissioners, 56 N. Y. S. R. 641; People ex rel. v. Tax Commissioners, 61 id. 70, reversed on another point, 144 N. Y. 483.) The decision in Thurber- Whyland Co. v. Tax Commissioners (141 N. Y. 118) is conclusive in this proceeding.

5

Opinion of the Court, per PECKHAM, J.

[Vol. 147.

PECKHAM, J. The above relator obtained two writs of certiorari under chapter 269 of the Laws of 1880, for the purpose of reviewing the action of the above defendants in assessing the relator for all sums invested in its business in this state in the years 1893 and 1894, a separate writ having issued for each assessment. The defendants were commissioners of taxes and composed the board of taxes and assessments of the city and county of New York, and they made an assessment in each of the above years against the relator which is a foreign corporation having money invested in this state, such assessment being based upon the provisions of the act chapter 37 of the Laws of 1855, one section of which reads as follows: "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, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong." The relator disputes the validity of each assessment. The defendants, in 1893, assessed the relator at a certain sum, after deducting that portion of its indebtedness which they decided had been incurred in this state in the purchase of property herein, and in 1894 they made an assessment without deducting any of the indebtedness of the relator whatever. The relator claims that the defendants, in 1893, did not deduct all its indebtedness which had been incurred in the purchase of property within this state, and that if they had done so, there would have been no assessment made against it here. It also claims that the assessment of 1894 was void because of the refusal of the defendants to make any deduction whatever for any indebtedness. The reason for the difference in the two assessments is based by the defendants upon the decision of this court in People ex rel. Thurber- Whyland Co. v. Barker et al., reported in 141 N. Y. 118.

That case was decided here subsequent to the assessment of