People v. Park Row Realty Co.

Headnote

People v. Park Row Realty Co., 169 App. Div. 903 , affirmed.

Appeal, by permission, from an' order of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1915, which affirmed an order of Special Term overruling a demurrer to the complaint in an action under sections 265 and 266 of the Tax Law (L. 1909, ch. 412) for the sale of two alleged mortgages (or such part thereof as may be necessary) to provide ■ for the payment of an alleged mortgage tax, together with a penalty to be assessed upon the basis of six per' centum per annum upon the amount of the alleged tax. . It appears by the complaint that on October 23, 1907, two instruments purporting to be deeds conveying to the defendants Rothschild certain premises in New York were executed by the defendant Park Row Realty Company. Prior to their execution a certificate was executed by all of the stockholders of such company consenting to its executing and delivering the two instruments mentioned. This certificate recited that the deeds therein referred to were “ to be and operate though absolute upon their face, as mortgages or security to the firm of N. M. Rothschild & Sons and de Rothschild Freres (comprising the defendants Rothschild) for the

repayment to said firms respectively of such moneys as they may advance to the firm of August Belmont & Co. in accepting and paying checks, drafts and hills of exchange drawn upon them respectively by said August Belmont & Co.”

The following questions were certified:

“Has the Supreme Court jurisdiction of the subject of action ?

‘ ‘ Does the complaint state facts sufficient to constitute a cause of action ? ”