Hun.]

THIRD DEPARTMENT, JULY TERM, 1895.

The application for a revision was heard and granted. The Comptroller allowed the railroad company the following credit upon its tax for the years above mentioned: "1885, $10,749.93; 1886, $12,455.71; 1887, $13,179.81; 1888, $13,430.60; 1889, $12,381.06; 1890, $12,735.13; 1891, $12,795.24," a total of $87,727.48.

The matter comes before this court upon a certiorari issued pursuant to the provisions of section 20 of chapter 542 of the Laws of 1880 (added by chapter 463 of the Laws of 1889). The learned Attorney-General urges that the statement of the railroad company used before the Comptroller on the revision was not properly verified, and was not evidence of the facts therein stated, and that the Comptroller had no sufficient proof before him to justify the correction of taxes which had been duly assessed and paid. Also, that no notice of the application for the revision was served upon the Attorney-General according to the previous practice of the Comptroller's office. Also, that certain bonds owned by the corporation during the years in question were illegally held by the Comptroller to be a part of its capital stock employed out of the State.

As to the objection that the petition for the revision signed by J. Carstensen, the comptroller of the railroad, was not properly verified, we are of the opinion that Mr. Carstensen, having signed the petition and being named in the affidavit of verification, it was not necessary for him to sign the latter. (Haff v. Spicer & Ano., 3 Caines, 190; Jackson ex dem. Kenyon v. Virgil, 3 Johns. 540.)

Nor was the effect of the affidavit of verification impaired because of the words "to the best of his knowledge and belief" at the end thereof. (Pratt v. Stevens, 94 N. Y. 387.)

By the petition of the railroad company signed by Carstensen it appears that he had examined the records kept by the company, and that during the years in question, as shown by the said records, a certain amount of the capital stock of the railroad company was employed out of the State. It is claimed by the People that there was no proof before the Comptroller that the books and records of the railroad company were correct, and hence there was no competent evidence before him to justify the revision.

As we understand the petition and affidavit, Mr. Carstensen states in the petition that he had obtained the figures appearing in his statement from the records and books, and believes them correct,

THIRD DEPARTMENT, JULY TERM, 1895.

[Vol. 88. and in the affidavit says that the facts set forth in the petition are correct and true. We think that in such a case the papers were sufficient to authorize the determination of the Comptroller.

In reviewing a decision of the Comptroller, under the provisions of the act of 1889, we are not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. The strict rules of evidence applied in actions do not govern in a proceeding before the Comptroller. He may receive affidavits as evidence. (People ex rel. Harlan & Hollingsworth Co. v. Campbell, 139 N. Y. 68.)

The Comptroller is in fact an assessor, and may determine the matter submitted to him upon evidence which would not be deemed admissible in a common-law action. (People ex rel. Roelling's Sons' Co. v. Wemple, 138 N. Y. 582, 583.)

On the application for a revision, the railroad company submitted a statement taken from its records as evidence. As said in People ex rel. Harlan & Hollingsworth Co. v. Campbell (supra) at page 71, the case shows that the Comptroller received the petition as evidence of the facts therein set forth, and it does not appear that any one objected to it as not competent. The Comptroller might have required further proof, but he was satisfied that the statement taken from the books of the company showed the actual amount of its capital stock employed out of the State. In his return he says: "The New York Central and Hudson River Railroad Company submitted evidence to the Comptroller which showed the employment of a portion of its capital stock out of the State and how much thereof was so employed, and the Comptroller thereupon resettled the accounts of such company so as to confine the tax to the capital stock employed within the State of New York as required by law. * ** The evidence submitted satisfied him of the truth of the facts alleged, and warranted him in entering the order correcting the error in the accounts as theretofore settled."

We suppose, as a matter of fact, that the reports made to the Comptroller by corporations in pursuance of the act of 1880 are usually drawn from their books and records. It is difficult to see how otherwise corporations could make a report required by the act. Had this railroad company, in making its annual reports for the years, given the amount of capital stock employed out of the

Hun.]

THIRD DEPARTMENT, JULY TERM, 1895.

State, and so stated from statistics contained in its books and records, the Comptroller undoubtedly would have been authorized to deduct the amount of capital stock so said to be employed out of the State from information derived from the books of the company.

no reason to doubt that, on the motion for a revision of an assessment on account of a mistake as to the amount of capital stock employed in the State, the Comptroller may also rely upon information derived from the books of the company. We are of opinion. that the Comptroller may usually determine for himself what evidence he requires of the facts on the motion for a revision; that it was competent for him to rely upon the books and records of the company showing the amount of its property employed out of the State, and that this court cannot properly reverse the finding of the Comptroller on the ground that it was based on such evidence.

The objection is also taken to the revision made by the Comptroller on the ground that no notice of the application for a revision was given to the Attorney-General according to the usual practice. It is sufficient to say in answer to this position that the return in the case of Comptroller Campbell controverts the affidavit of Charles E. Kilmer in regard to the existence of any such practice in cases of revision when the application therefor is made subsequent to the payment of the tax.

The statement from the records of the New York Central and Hudson River Railroad Company which the Comptroller received in evidence and which we think he had, in his discretion, a right to regard, as to the amount of the capital stock of the company employed out of the State during the years in question, showed that during each of said years a large number of freight cars were permanently occupied out of the State and that the company also had a portion of its capital stock invested in the stock of foreign corporations and also in corporate bonds.

It does not require a discussion or citation of authorities to show that such part of the capital stock of the railroad company as was invested in freight cars permanently engaged out of the State was not subject to the franchise tax under the provisions of chapter 542, Laws of 1880, and the acts amendatory and supplementary thereto. (Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18; Commonwealth v. Del., L. & W. R. R. Co., 145 Penn. St. 96.)

THIRD DEPARTMENT, JULY TERM, 1895.

[Vol. 88.

It is equally clear that the stock of foreign corporations in which a portion of the capital stock of the company was invested was not capital stock used in the State. (People ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y. 543–546.)

We, therefore, think that the Comptroller was justified in making the revision he did of the tax assessed against the railroad company as far as it was assessed on that portion of the capital stock of the corporation invested in freight cars permanently engaged out of the State and in the stock of foreign corporations.

We, however, are unable to agree with the Comptroller that the bonds of foreign corporations held by the New York Central and Hudson River Railroad Company were a part of its capital stock employed out of the State. The amount allowed by the Comptroller on account of such bonds during the years in question is stated to be $13,560.15. Nothing appears in the case to show that those bonds were employed out of the State. In People ex rel. E. E. L. Co. v. Campbell (supra), at page 547, it is said, a similar question arising in that case to the one under consideration: "Those bonds were presumably held at its office in this State, and such bonds, as well as all choses in action, unless kept, employed or used outside of the State, have their situs at the domicile of the owner." It is suggested by the learned counsel for the respondents that the clause in the opinion of EARL, J., above quoted, was obiter. We think, however, that the opinion of the eminent judge who delivered the opinion of the Court of Appeals in the case cited may be considered an authority and properly followed, although not absolutely necessary in the decision of the case in which it was

written.

Our conclusion, therefore, is that the allowance made to the New York Central and Hudson River Railroad Company on the revision should be corrected by deducting therefrom the amount allowed on account of capital stock invested in the bonds of foreign corporations during the years in question, and as so modified the decision of the Comptroller should be confirmed, without costs to either party.

MAYHAM, P. J., and HERRICK, J., concurred.

Decision of the Comptroller modified as per opinion and as modified affirmed, without costs to either party.

Hun.]

THIRD DEPARTMENT, JULY TERM, 1895.

MARGARET A. SWIFT, Appellant, v. CHARLES H. SWIFT and MARY LOUISA SWIFT, Respondents.

Dower — reference to assess damages for the withholding thereof — costs set off against the costs of an adverse party.

In an action brought to recover dower in real estate occupied by one of the defendants, and damages for withholding the same, the defendants appeared, but did not answer. After the usual reference commissioners were appointed, who made a report admeasuring the plaintiff's dower, but did not report on the question of damages.

After such report was made, and before the entry of judgment, the plaintiff applied for and obtained an order of reference to compute her damages. Such order of reference provided that the referee was authorized to determine whether the plaintiff's damages, "if any, were taken into consideration by the commissioners heretofore appointed herein for the admeasurement of plaintiff's dower in said premises, and whether said commissioners made plaintiff due and full compensation for such damages in their award."

The referee reported as follows: "That said commissioners took into consideration the farm as it stood when the divisjon was made, as to the crops being on the land or off, and made plaintiff due, full, complete and adequate compensation for any and all inequalities which existed in the land set apart to her by reason of hay or pasture being removed therefrom, and any and all damages which she sustained by reason of the dower being withheld from her in said farm by the defendant."

Held, that under the order of reference which was obtained and entered by the plaintiff, the referee was authorized to receive evidence as to the action and finding of the commissioners, although the latter made no formal report on the question of the plaintiff's damages.

The judgment as entered contained no provisions in reference to the plaintiff's claim for damages, or for the costs of the defendants on their motion for an order confirming the referee's report denying plaintiff's claim for damages. Held, that the proper procedure when the final judgment was entered would have been to deduct the motion costs of the defendants from the amount of the plaintiff's claim and insert in the judgment a clause denying the plaintiff's claim for damages;

That the judgment might be amended by an order confirming the report of the referee denying the plaintiff's claim for damages and directing that the costs of such motion as taxed be set off against the plaintiff's costs in the final judgment.

APPEAL by the plaintiff, Margaret A. Swift, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 22d day of