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People ex rel. Cornell Steamboat Co. v. Sohmer

206 N.Y. 651 Court N.Y. Decision date 1912-06-21 English

Judges Concur: G-ray, Werner, Hiscock and Collin, JJ.; Concur: Willard Bartlett and Chase, JJ.

Delivered by Cullen, Ch. J.

Contents

Majority

p. 651
The People of the State of New York ex rel. Cornell Steamboat Company, Appellant, v. William H. Sohmer, as Comptroller of the State of New York, Respondent.
(Argued June 5, 1912;
decided June 21, 1912.)

Headnote

People ex rel. Cornell Steamboat Co. v. Kelsey, 148 App. Div. 907 , affirmed.
Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14,1911, which confirmed a determination of the defendant denying an application for a revision and readjustment of taxes for the years 1902 and 1903.
Lewis E. Carr and Amos Van Etten for appellant.
Thomas Carmody, Attorney-General {Franklin Kennedy of counsel), for respondent.

Order affirmed, with costs; no opinion.

Concur: G-ray, Werner, Hiscock and Collin, JJ.

I vote for the affirmance of the order appealed from on the strength of the proposition asserted in the dissenting opinion in New York Terminal Company v. Gaus ( 204 N. Y. 512 , 519) that the franchise tax imposed by the statute “ is levied on the corporation for the privilege, as the statute declares, of carrying on its business in a corporate or organized capacity; not of doing business, but of doing business in a corporate capacity; ” in other words, exclusively for the privilege of being a corporation instead of a partnership. And the additional franchise tax required by section 184 is, in my opinion, exactly of the same character. I doubt whether in the true sense of the term it is to he considered a tax, hut should not rather be deemed a compensation exacted for the privilege which the state might refuse. If the parties

p. 652
beneficially interested in the appellant are dissatisfied with the price exacted by the state they may have the corporation dissolved and as individuals carry on the same business that is being done now without the cost of any such charge.

Concur: Willard Bartlett and Chase, JJ.

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