908, Laws 1896). The amount of the tax was originally fixed at $2,241.24 for the six years preceding October 31, 1896. Upon a rehearing, it being made to apear that a former comptroller had, in 1893, written to an officer of the relator that the department was of the opinion that it was not subject to a corporation tax, the assessment was reduced to the sum of $1,009.08, being for the three years ending October 31, 1896. The relator is a foreign corporation organized under the laws of the state of Maine, with its principal office in the city of Boston. Since the 1st of December, 1889, it has had a branch office and conducted a portion of its business at East Buffalo, in the county of Erie, N. Y. A certiorari was obtained to review the determination of the comptroller, and, after a hearing before the appellate division, that court held that the relator was not subject to the tax assessed for the reason that its business within the state was manufacturing, and consequently it was exempt from taxation under the provisions of the corporation tax laws.

Theodore E. Hancock, Atty. Gen., for appellant. James W. Eaton, for respondent.

MARTIN, J. The principal and most important question involved in this case is whether the business conducted by the relator in this state was manufacturing, within the meaning and intent of the corporation tax laws, by the provisions of which manufacturing corporations carrying on "manufacture" within the state are exempt from the operation of the laws relating to corporation taxes.

Briefly stated, the principal business carried on by the relator was the purchasing of sheep and lambs, slaughtering them, pulling the wool from the hides or pelts, selling it, selling the hides, taking from the animals the offal, in cluding the blood and legs, converting it into fertilizer, and then reducing the carcasses to a temperature which would retard decomposition, and shipping them to the place of delivery in refrigerator cars. We think this does not constitute "carrying on manufacture," within the spirit and meaning of the statutes.

The

The business conducted by the relator was obviously that of purchasing, slaughtering, and selling sheep and lambs. While it utilized the hides, the wool, the tallow, and the offal, as well as the carcasses of these animals, yet, to say that refrigerated mutton, rendered tallow, pulled wool, or untanned hides were manufactured articles would be quite incorrect. words of a statute are to be given their natural, plain, obvious, and ordinary signification. To say that the relator was engaged in man ufacturing mutton, wool, hides, or tallow would not be giving to the words "manufacture" or "manufactures" their ordinary and plain meaning. It may be that the fertilizer might be regarded as a manufactured article, but that was not the principal business in which the relator was engaged, but was a mere incident to it. Manifestly, none other of these

articles was manufactured. At most, they were merely prepared for market and preserved until sold. We are clearly of the opinion that the relator was not a manufacturing corporation, nor engaged in "carrying on manufacture" in this state, within the spirit and meaning of the statutes.

Moreover, the principle of the decisions of this court is adverse to the contention of the respondent. People v. Knickerbocker Ice Co., 99 N. Y. 181, 1 N. E. 669; People ex rel. Union Pacific Tea Co. v. Roberts, 145 N. Y. 375, 40 N. E. 7. In the Knickerbocker Ice Co. Case it was held that a corporation, engaged in collecting, storing, and preserving ice, of preparing it for market, and of transporting and vending it, was not a manufacturing corporation, under the provisions of the statute under consideration, and did not fall within the exception contained in it. In the Union Pacific Tea Co. Case the relator was engaged in the sale of spices, baking powder, coffee, and tea. It purchased these articles in bulk, and the spices and baking powder were put up by it in packages for sale. Various kinds of tea were mixed together, and the compound was called and sold as "combination tea." The coffee was purchased in the raw bean, then roasted and ground, and in some instances different kinds were mixed together. The relator in that case claimed that it was a manufacturing corporation, and therefore exempt from the corporation tax, but this court held that the business carried on by it was not manufacturing, and that it was liable for the tax imposed. It is quite obvious, both upon principle and authority, that the relator in the case at bar was not a manufacturing corporation within the meaning of the corporation tax law, and the appellate division erred in holding otherwise.

Another ground upon which the respondent relies to defeat this appeal is that the decision of the comptroller in 1893, to the effect that the relator was not liable to taxation because it was a manufacturing corporation, was res adjudicata, and therefore the comptroller in 1897 was bound by that decision and estopped from holding otherwise. It appears from the record that in 1893 the relator applied to the comptroller for a cancellation of the taxes assessed against it for the years 1890, 1891, and 1892, upon the ground that it was a manufacturing corporation, and was engaged in no other business in the state of New York. That application was accompanied by the affidavit of an officer of the company, describing the business that was conducted in this state by the relator. On the hearing in the present case there was testimony to the effect that an officer of the relator came to Albany in November, 1893, to see the then comptroller in relation to the taxes thus assessed; that they went over the whole subject, and that subsequently, on December 1, 1893, the deputy comptroller wrote the relator a letter, which was to the effect that it was the opinion of the department that the

relator was exempt from the taxes assessed by reason of its being a manufacturing corporation wholly engaged in carrying on manufacturing within the state of New York. It is to be observed that the assessment under consideration included none of the years for which the former assessment was made. Thus, the single question presented seems to be whether the determination of an assessing or taxing officer that an assessment made for one particular year should be canceled for the reason that the property was not subject to assessment, is conclusive upon succeeding officers against assessments for subsequent years upon the same property or franchise. Officers upon whom the duty of making assessments for the purpose of taxation is imposed are independent public officers, exercising public powers, charged with special public duties, possessing no jurisdiction as agents of the state, and for whose acts the state is not liable. Nor is the state responsible for any mistake or misfeasance by them in the performance of their duty. Mechem, Pub. Off. § 28; Lorillard v. Town of Monroe, 11 N. Y. 392. The statute imposes on such officers the duty to perform certain distinct and definite acts. By the statute under consideration, the duty was imposed upon the comptroller to tax every corporation, jointstock company, or association doing business in the state, except certain corporations and institutions, among which were manufacturing corporations carrying on manufacturing within the state. If, in 1894, 1895, and 1896, the relator was actually engaged in carrying on a business within the state which was not that of manufacturing, and, consequently, did not fall within any exception in the statute, then it was the plain duty of the comptroller to assess it for a corporate tax as provided by statute, and the fact that, through misapprehension or otherwise, a former comptroller had refused or neglected to discharge his duty as such taxing officer could not interfere with or prevent a discharge of his duty by the present comptroller. In other words, this statute imposes upon the comptroller the duty of assessing upon corporations which are liable therefor the tax provided for by statute, in each year during which they are liable to such assessment, independent of any action by a former comptroller. We are aware of no principle which would justify this court in holding that, because a former comptroller erroneously decided that the relator was not liable to be assessed for the years 1890, 1891, and 1892, the right to assess it for subsequent years was forfeited, or that the exercise of that right was in any way barred.

While it may be true that, where actions are brought involving a question as to the validity of a tax imposed under some particular statute, the determination of the question upon which its validity depends may become res adjudicata in a subsequent action, we think there is no ground for holding that

the action of a mere assessing officer in determining that property is exempt from assessment for one year concludes the state as to the taxes imposed in subsequent years, and prevents other assessing officers from complying with the clear and plain requirements of the statute. We are of the opinion that the action of the comptroller, in 1893, in no way affected or estopped the comptroller, in 1897, from assessing a proper corporation tax upon the relator, and that the determination of the appellate division cannot be sustained upon that ground.

Another contention of the respondent is that the comptroller erred in the basis upon which this tax was assessed. That it was based upon the dividends of the relator is not denied. But the particular claim of the respondent is that its dividends were earned in its business transacted outside of the state of New York, that its business conducted in the state was without profit, and, consequently, that the dividends could form no proper basis for the assessment. The answer to that contention is that the statute declares the basis upon which the assessment is to be made, and makes no distinction as to the locality where the money was earned which was divided. We find nothing in the statute to justify the contention of the respondent. We think the tax was properly assessed, that the basis adopted was the correct one, that the order of the appellate division was wrong, that it should be reversed, and that the determination of the comptroller should be affirmed. All concur. Order reversed, etc.

ARCHER v. ARCHER et al. (Court of Appeals of New York. 1898.)

JUDICIAL Sale ·

April 19,

ASSIGNMENT OF BID-JURISDIC-
TION.

One B. took an assignment of the bid of a purchaser of certain land at a referee's sale in partition, and immediately notified the plaintiff's attorney that he had done so, and requested that one deed be made to him of the land in question and other land which he had himself purchased. Subsequently, having objected to the title to the land in question, he suggested to the plaintiff's attorney to make a motion to require him to complete the purchase, on which his objections could be submitted to the court. Held that, whether or not the court would have jurisdiction to compel him to complete the pur chase merely by virtue of the assignment of the bid to him, he had so far submitted himself to the jurisdiction of the court as to be subject to its orders in the matter.

Appeal from supreme court, general term, Second department.

Action by Frederick A. Archer, Jr., against Lewis N. Archer and others, for partition of certain premises. William Booth became a purchaser, and assigned his bid to Emanuel G. Bach. From an order of the general term (32 N. Y. Supp. 410) affirming an order directing Bach to complete his purchase, he appeals. Affirmed.

Edwin L. Kalish, for appellant, Bach. Seward Baker, for respondent.

PARKER, C. J. In pursuance of a judgment of sale in partition, the appellant, Bach, purchased lot No. 2, while William Booth bought lot No. 1. The terms of sale were signed by the purchasers respectively, who, at the same time, paid down 10 per cent. required upon the signing of the terms of sale. A few days later, Bach took an assignment of Booth's bid, and immediately thereafter advised the attorney for the plaintiff that he had done so, at the same time directing that a deed be prepared conveying to him lots Nos. 1 and 2 in one conveyance. The referee prepared and executed the deed in accordance with such instructions, but Bach subsequently refused to accept it, on the ground that a stream of water ran across Oostdorp avenue, and across plot No. 1, and then across Mechanic street. Proceedings were thereafter instituted to compel Bach to take title, resulting in an order of the special term directing him to complete his purchase, which order was affirmed at the general term. On this review, the only question presented is whether the court had jurisdiction to compel Bach to take title to plot No. 1, which was purchased at the sale by Booth, who immediately thereafter, in writing, assigned his bid and the terms of sale and his rights thereunder to Bach. The jurisdiction of the court to compel a purchaser at a judicial sale to complete his purchase is well settled. Wood v. Mann, 3 Sumn. 322, Fed. Cas. No. 17,954; Requa v. Rea, 2 Paige, 341; Cazet v. Hubbell, 36 N. Y. 677; Miller v. Collyer, 36 Barb. 250. Judge Story, in Wood v. Mann, supra, says that the authority to compel a purchaser to complete his purchase "stands upon the strictest principles of the court, that he who makes himself a party to the proceedings of the court, and undertakes to do a particular act under the decretal orders of the court, may be compelled to perform what he has undertaken. It is a mere incident to the due exercise of the principal jurisdiction, and is indispensable to the due enforcement of the orders of the court upon persons who have submitted themselves to its jurisdiction." In Proctor v. Farnam, 5 Paige, 614, the court said: "It is a familiar principle that any one who interferes pendente lite with the subject-matter of a suit in equity submits himself to the jurisdiction of the court, to be exercised by petition or motion in the original suit; and that he acquires no rights in that manner which may not be modified, controlled, or directed without any new proceeding directly against him; and this doctrine applies with full force to this case of a purchaser under a decree, and to all who claim interest under him." In the case just cited, the assignee of the bid of a purchaser at a judicial sale obtained the order of the court, against the protest of such purchaser, direct

ing the execution of the conveyance immediately to him by the master. The appellant urges, however, that this rule is not applicable to the mere assignee of the vendee of a contract to purchase land, because the assignee, by simply accepting the assignment, has not undertaken to do any particular act under the orders of the court, so as to vest it with the authority to put him in motion; that, by the assignment in this matter, Bach acquired the option to complete the purchase and take title; but that no one could compel him to do so, not even his assignor; and that in such case the remedy under the judg ment is to compel the purchaser at the sale to complete the purchase.

The difficulty with the appellant's position seems to lie in his assumption of facts. While it is true that the facts in this case are not like those of any other to which our attention has been called, still they bring this case within the principle established in the cases cited, which predicates the power of the court to compel the purchaser to take title upon his interference with the proceed ings had under the order of the court, by which it is said he subjects himself to its jurisdiction, and may be compelled to perform whatever he has undertaken. The interference in the cases cited was in bidding at a judicial sale, and undertaking to pay for the property the sum bid. Now, in this case, while the appellant did not purchase at the sale, and therefore was not within the facts of such cases as I have referred to, he did purchase, for a valuable consideration, of the vendee, his bid, which, together with the terms of sale, was assigned to him in writing. Had he stopped there, the question which the appellant argues would be before us. But he did not. Armed with the assignment of the bid, he went to the attorney for the plaintiff, to whom he showed the evidence of his right to the plot purchased by Booth, and requested and directed that the deed to be prepared should convey to him plots Nos. 1 and 2 in one conveyance. The attorney for the plaintiff and the referee promptly recognized the substitution of Bach for Booth as to plot No. 1, and in due time prepared and executed a deed for the property in the manner requested by Bach. But this was not his only interference with the proceedings. Later on he found that a small stream ran across the premises, and he objected that this stream constituted an incumbrance, and requested to be relieved from the purchase on that ground. This request was denied, and on the 13th of July Bach's attorney addressed a letter to the plaintiff's attorney, which read as follows: "Seward Baker, Esqr.-Dear Sir: Mr. Bach desires to be relieved from the purchase on the grounds I stated to you some time ago. Will you bring up this question by a motion to compel him to complete? If you desire to do this, I suggest that we agree upon the papers within a few days, as

I intend going out of town during August. Yours, truly, Edwin L. Kalish." As we have already observed, the ground of his objection was that this stream of water constituted an incumbrance. No other ground was ever suggested so far as this record discloses. Bach makes an affidavit, and so does his attorney; but neither of them suggests as an objection that, Bach being merely the assignee of the purchaser of plot No. 1, the court could not require him to take title. The letter, therefore, was an invitation to institute this proceeding. It recognized that his conduct had been such as to give the court jurisdiction; and, in view of what had taken place between the parties before it was written, it imported that he hoped to be relieved by the court from completing the purchase upon the ground that the stream of water constituted an incumbrance. His invitation for the institution of this proceeding was promptly accepted, and affidavits were presented by the attorneys for the respective parties, and by Bach himself; but the only fact in controversy in the affidavits related to the question of knowledge on Bach's part as to the existence of the stream at the time he purchased the bid from Booth. It is unnecessary to pursue this subject further, for it is quite apparent that Bach so far interfered with the proceedings of the court as to submit himself to its jurisdiction within the rule to which we have referred. Not only did he take an assignment of the bid, and demand a deed of the property, but he also, in recognition of the jurisdiction of the court, invited the institution of a proceeding by means of which he hoped to obtain an adjudication relieving him from taking title because of a supposed incumbrance. The order should be affirmed, with costs. All concur. Order affirmed.

In re ATTORNEY GENERAL. (Court of Appeals of New York. April 19, 1898.)

APPEALABLE ORDER-EXAMINATION OF WITNESSES -APPLICATION OF ATTORNEY GENERAL.

An application by the attorney general for the examination of witnesses before the bringing of an action, under Laws 1897, c. 383, is not a special proceeding, and an order of the appellate division, affirming an order vacating an order for such examination, is not appealable to the court of appeals, both for this reason and because the original order is discretionary.

Appeal from supreme court, appellate division, Third department.

Application by the attorney general for an order for examination of Robert M. Olyphant and others under the provision of chapter 383, Laws 1897. From a judgment of the appellate division (47 N. Y. Supp. 883) affirming an order of the special term (Id. 20), granting motions to vacate orders requiring examination, the attorney general appeals. Dismissed.

T. E. Hancock, J. Newton Fiero, and John C. Davies, for appellant. David Wilcox, Lewis E. Carr, David McClure, and R. W De Forest, for respondent.

HAIGHT, J. On the 12th day of May, 1897, the attorney general presented to Justice Chester of the supreme court a petition asking for the examination of Olyphant and others, pursuant to chapter 383, Laws 1897. The order was granted, but subsequently, upon motion of the persons summoned to appear for examination, was vacated by the justice who granted it. The order vacating the order for examination was affirmed in the appellate division upon the ground that the papers upon which the original order was issued were insufficient, and from the order of affirmance this appeal is taken.

We think this order is not appealable to this court. Appeals may be taken to the court of appeals, as of right, "only from judgments or orders entered upon decisions of the appellate division of the supreme court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them." Const. art. 6, § 9; Code Civ. Proc. § 190. The order, if appealable, must be an order finally determining a special proceeding. Is this order a special proceeding? Section 3333 of the Code of Civil Procedure provides that "the word 'action' as used in the new revision of the statutes when applied to judicial proceedings signifies an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, the redress of a wrong, or the punishment of a public offense." Section 3334 provides that "every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding." It will be observed that the purposes specified in the last section are the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. A special proceeding, therefore, must be a prosecution for one of these purposes. The order in question was an order for an examination of a witness before trial. The only object and purpose of the examination is the perpetuation of the testimony that the witness may give and the obtaining of the information that it may disclose. With the taking of the testimony and the filing of it with the officer designated by the statute the proceeding terminates. No enforcement or protection of a right or the redress of a wrong or the punishment of a public offense can be effected by any final order entered in the proceeding. It is true that the information derived from the testimony may lead to the bringing of an action in which the protection of rights and the redress of wrongs may be effected, but this is accomplished by means

of the action, and not through the proceedings taken upon the order. It is therefore apparent that the order in this case is not an order in a special proceeding within the definition given by the Code. The distinguishing between orders in actions and special proceedings may at times be attended with some difficulties. An order for the examination of a witness before trial, but after an action has been brought, is clearly an order in the action (Lamp Co. v. Brigham, 1 App. Div. 490, 492, 37 N. Y. Supp. 402); but it is said that such an order issued before action brought is not an order in the action, for the reason that no action is pending, and that if it is not an order in an action it must be a special proceeding. We cannot indorse this contention. Many orders are made by judges out of court preliminary to the bringing of an action, including the provisional remedies, orders for the publication of the summons, substituted service, and leave to bring actions, where such is required by the provisions of the Code. In this case the attorney general, as he tells us, intended to bring an action. Preliminary thereto he sought the order in question for the purpose of obtaining the information upon which he proposed to base his action. It was a step in his proposed action, preliminary thereto, it is true, but becoming a part of the proceedings in the action as soon as the action should be brought. This question has, to some extent, been considered in this court in the recent case of Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866. In that case the order appealed from denied a motion made by the defendant to set aside an order which granted leave to the plaintiff to bring an action upon an old judgment. An order had been issued giving a person leave to sue before any action had been brought, and yet it was held that such an order was not an order in a special proceeding, and was therefore not appealable to this court. We think this case is not distinguishable in principle from that case, and, the order in that case not being appealable, it follows that the order in this case is attended with the same infirmity.

Again, the order of Justice Chester required the exercise of his judgment and discretion. The attorney general was required to satisfy him that the examination was necessary, and it is not apparent from anything appearing that the order for the examination was not vacated by him in the exercise of the discretion vested in him.

If

he did vacate the order in the exercise of his discretion, the order is not appealable to this court. Bank v. Sheehan, 101 N. Y. 176, 4 N. E. 333; Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 613.

Numerous questions have been raised with reference to the constitutionality of the act under which the examination herein was sought. These questions have not been considered by the majority of the judges com

posing the appellate division, and we, consequently, have not before us their views. This court has repeatedly refused to consider questions involving the constitutionality of a law unless such questions are essential to the determination of the appeal. People v. Supervisors of New York, 3 Abb. Dec. 566. We think that no departure should now be made from the precedents established in this regard, and that the consideration of the questions involving the constitutionality of the act should be left until a case is presented requiring a determination of those questions. The appeal should be dismissed, with costs. All concur. Appeal dismissed.

WITHERBEE et al. v. MEYER.

(Court of Appeals of New York. April 19, 1898.)

BREACH OF CONTRACT-MEASURE OF DAMAGES.

The measure of damages for a failure to perform a contract to furnish power or machinery to operate a mill is the difference in the rental value of the mill with the power or machinery contracted for and without it; and the profits which might have been made if the contract had been performed cannot be taken into consideration.

Appeal from supreme court, general term Third department.

Action by Robins M. Witherbee and Emmett J. Gray against Aubrey E. Meyer. From a judgment of the general term (32 N. Y. Supp. 537) affirming a judgment on the report of a referee awarding to plaintiffs damages for breach of contract, and for specific performance, defendant appeals. Reversed.

J. Sandford Potter, for appellant. Joseph Potter, for respondents.

PARKER, C. J. The only question presented on this review is whether the referee adopted a correct rule of damages. The plaintiffs were awarded damages in the sum of $3,119.50, because of the defendant's failure to perform, as he had obligated himself to do, the agreement of his predecessor in title to furnish sufficient water power to run and operate the shaft ing, gearing, millstones, machines, and machinery contained in a certain gristmill, then the property of the Whitehall Water Power Company. The amount of water power actually afforded to the plaintiffs was 12 horse, whereas, according to the testimony of a professional engineer and millwright, from 35 to 38 horse power was required to run the mill in a proper and efficient manner. Evidence indicating that it was the plaintiffs' hope to be able to show gains prevented and losses sustained was offered; but, in spite of the skill which the learned counsel for the plaintiff's displayed in marshaling the few facts within his reach, the result was most inconclusive and unsatisfactory. So much so that it may safely be said that this case furnishes still another illustration of the wisdom which led to the adoption of the general rule that in cases of this character the