McLean v. Wyandance Brick & Terra Cotta Co. — 49 N.Y. St. Rep. 601

Majority

p. 601

George W. McLean, Rec’r of Taxes, Resp’t, v. The Wyandance Brick & Terra Cotta Co., App’lt.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Cokpohations—Taxes.

Where the allegation of the petition to compel payment of a tax by a cor-i poration that it had its principal office or place for transacting business in the city of New York is not denied, but is supported by the return made by the company, it will be presumed to be correct and the proceeding maintainable, although its cerlificate of incorporation, which is not produced, was filed in another county.

Appeal from an order directing the appellant, its president, officers, trustees and directors forthwith to pay to the clerk of the city and county of New York, for the benefit of George W. McLean, as receiver of taxes, the sum of $1,038.96, the fine imposed on said appellant for its misconduct in neglecting and refusing to pay the personal tax imposed on it for the year 1890.

D. G. Harrman, for app’lt; John G. H. Meyers, for resp’t.

The appellant claims that it is not taxable in this county, for the reason that its certificate of incorporation was not filed here, but was filed in the clerk’s office of the county of Suffolk, and that such certificate states that “ the name of the town and county in which the operations of the said company are to be carried on is town of Babylon, county of Suffolk.” Upon this state of facts, the appellant contends that its case comes within the authorities holding that the location, for the purpose of taxation, of a manufacturing corporation organized under the general act of 1848 (chapter 40), is the place designated in its certificate as that where the operations of the company are to be carried on. Starch Co. v. Dolloway, 21 N. Y.,

p. 602

449 ; Union Steamboat Co. v. City of Buffalo, 82 N Y., 351 ; Chesebrough Manufacturing Co. v. Coleman, 44 Hun, 545 ; 9 St. Rep., 360 . This contention is not well founded, .for two reasons: First, the appellant fails to show that it was incorporated under the act of 1848; and, second, no copy of the certificate having been presented in opposition to the motion, we cannot assume that such certificate is silent 'as to the company’s principal office or place for transacting its financial concerns. It may well be that the certificate fixes the company's principal office or place for transacting its financial concerns, as well as the county in which its operations are to be carried on. The respondent’s petition states that, “ in the year 1890, the Wyandance Brick & Terra Cotta Company was a moneyed or stock corporation, having its principal office or place for transacting its financial concerns in the city of New York.”

This statement is not denied, and it is supported by the return made by the company for the year in question, which was filed in the office of the commissioner of taxes and assessments. The case is thus taken out of the rule laid down in Starch Co. v. Dolloway, supra, and is brought within the Revised Statutes and the case of McLean v. Couper Milling Co., 88 St. Rep,, 893 , affirmed 133 N. Y, 603 ; 44 St. Rep., 931 . The provision of the Revised Statutes is as follows: “All the personal estate of every incorporated company liable to taxation ón its capital shall be assessed in i the town or ward where the principal office or place for transacting the financial concerns of the company shall be; or, if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” 2 Rev. St. (Banks’ 8th ed.) 1094, § 6. The facts of this case are almost precisely similar to those in McLean v. Milling Co., supra. The petition of the receiver of taxes there, as here, stated that the company was a moneyed or stock corporation having its principal office oj- place for transacting its financial concerns in the city of New York. The latter statement was denied by the president of the company, Taut the court held that his statements were discredited and overcome by a return made to the commissioners similar to that which was made in this case. Here the affidavit of the treasurer, filed in opposition to the motion, fails to meet the material averments of the petition either by positive denial or by the statement of affirmative facts. It is not necessary, therefore, to discredit his affidavit in order to sustain the proceeding. The proof is clear as to the company’s principal office or place for transacting its financial concerns, and we are not informed whether this principal office was or was not fixed in its certificate. The language of Finch, J., in Union Steamboat Co. v. City of Buffalo, supra, is therefore applicable: “ If the company had a principal office, fixed by its certificate, that, and that only, was its residence for purposes of taxation. If it had no principal office, so located by its certificate, "then it was to be taxed where its financial concerns were transacted.” The point with regard to the defects in the petition need not be specially considered. It is the same form of petition as was sus

p. 603

tamed, in McLean v. Milling Co., supra, and it is sufficient. The order appealed from should, therefore, be affirmed, with ten dollars cos's and disbursements.

O’Brien. J., concurs._