People ex rel. Merchants' Real Estate Co. v. Wells , 97 N.Y.S. 47 ( 1905 )

O’Brien, P. J.:

It appears beyond dispute that outside of the small amount of money in the bank, which was offset by an indebtednesss, the entire capital and surplus of the relator consisted of real estate, and that for the purpose of reaching the sum at which the relator was taxed upon its capital and surplus this real estate was placed at a greater value than it was assessed for the pur póse of taxation as real estate. The question, therefore,'presented is whether the same réal- estate can he fixed at a greater value, depending upon whether the inquiry, by the commissioners-is to ascertain the amount for which the reía-' tor is liahle-npon its capital stock and surplus, than it was assessed at for the purpose of taxation as rfeal estate. It may be conceded that there is a difference, but the statute (Tax Law [Laws of 1896, chap. 908], § 21, as amd. by Laws of 1899, chap. 712) expressly provides that in fixing the value of real estate for the purpose of taxation as real estate, the commissioners shall assess it at its full value, and this is the value a,t which the statute (Tax Law, § 12; Id., § 31, as amd. by Laws of 1899, chap. 712) provides it must be fixed when it is considered as part of the capital and surplus of a corporation.

To hold that the commissioners, in disregard of their statutory duty, can fix a different value upon the same property for different purposes, is introducing an element of uncertainty and inconsistency upon a subject that is sufficiently' intricate-and perplexing and which, as shown in People ex rel. New York Real Estate Assn. v. Barker (29 App. Div. 329), if allowed, might, as in that case, result in double taxation.

The order should be reversed, with costs, and the writ sustained.

McLaughlin, J., concurred; Laughlin and Houghton JJ., dissented.