in the provisions of section 2260 of the Code of Civil Procedure. That section provides: "An appeal may be taken from a final order, made as prescribed in this title, to the same court, within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court, of which the judge or justice is the presiding officer;

* except as otherwise prescribed in the next two sections." The title of the Code in which this section is found relates exclusively to summary proceedings to recover possession of real property. Chapter 17, tit. 2, §§ 2231-2265. Section 2234 of that title, so far as material, provides that the application may be made either to the county judge or justice's court, to which latter court the City Court of Kingston corresponds in this respect. This proceeding having been

stituted in that court, we shall treat it in this opinion as if it had been commenced in justice's court. We must look for some statute governing appeals from that court in proceedings of this nature. We think section 2260, above quoted, is clearly applicable. It gives the right of appeal in the same manner and to the same court as from an ordinary judgment of such justice's court. By the plain terms of section 3405 of the Code, the appeal from such a judgment is to the County Court. Thus we have a provision for an appeal to the County Court in this proceeding. So far the matter is plain.

But we must go further, and see what provision, if any, is made for a further appeal to the Appellate Division. If this were an appeal from a judgment of the justice's court, affirmed or reversed by the County Court, there would clearly be a right of appeal under section 1340. But this is not a judgment. It is a final order in a special proceeding. If the proceeding had been instituted in the County Court, as it might have been, an appeal to the Appellate Division would be authorized by section 1357, as the County Court is a court of record, and the section cited authorizes such appeals in proceedings instituted in a court of record. Since there was no necessity for providing for an appeal by section 2260 in a proceeding instituted in the County Court, the unmistakable inference is that the right to appeal conferred by section 2260, so far as appeals to the Appellate Division are concerned, was intended to relate to appeals in proceedings instituted in justices' courts and other inferior local courts. That this was the purpose of the Legislature in the enactment of section 2260 is very forcibly illustrated by the succeeding section (section 2261), which seems to contemplate the right to a second appeal to the Appellate Division of the Supreme Court in summary proceedings instituted in justices' courts. Section 2261 provides, in substance, that an appeal cannot be taken to the Court of Appeals upon such an appeal" unless the Appellate Division shall allow the same. If section 2260 relates to appeals to

the Appellate Division in summary proceedings instituted in justices' courts and other inferior local courts, as we think it does, the words "such an appeal," contained in section 2261, used in connection with the allowance of an appeal to this court from the decision of the Appellate Division, quite plainly fortify the conclusion that it was the legislative intent to permit an appeal in such a proceeding to the Appellate Division. This was the substance of section 2261 as applied to the old General Terms, and when the Code was amended in 1895 (chapter 946, p. 861, Laws 1895) to carry out the provisions of the Constitution of 1894, this section was amended by substituting the Appellate Division for the General Term. Under section 191, subd. 1, relating to the jurisdiction of this court, no order or judgment made in an action or proceeding arising in justices' courts can be reviewed here without an allowance, and the language of section 2261 discloses an attempt to assimilate the practice in summary proceedings to that which is provided for appeals from judgment in justices' courts.

As we have seen, section 2260 confers the same right of appeal from a final order in a summary proceeding as from a judgment of the justice's court. Such an appeal must be taken first to the County Court, and then to the Appellate Division. To hold that this section does not apply to final orders in special proceedings instituted in justices' courts would require a narrow and arbitrary construction of the language of that section. There seems to be no good reason, moreover, why the right to appeal should be thus limited in summary proceedings that is not equally applicable in other cases arising in justices' courts. That the right to appeal in summary proceedings is not now to be regarded as thus limited is further borne out by the history of the section in question. The proceedings for review of decisions of justices' courts in such proceedings were formerly governed by the Revised Statutes (part 3, c. 8, tit. 10, § 52; 2 Edmonds' St. p. 534), which provided that "the proceedings before such justice may be removed by appeal to the County Court of the county, in the same man ner, and with like effect, and upon like se curity, as appeals from the judgment of jus tices of the peace in civil actions, except that the decision of such county judge shall be an affirmance or reversal of such judgment, and be final." When the Code of Civil Procedure was enacted in 1880, the section quoted was adopted after expunging the words importing finality in the County Court, and since then the section has remained in substantially the present form. The omission of these words of finality is significant, if not conclusive. It was done, as was explained by Mr. Throop in his notes to that section, in order to assimilate the proceedings to those which obtain in all other cases where the decisions of the same officers are reviewed. Warner v.

Henderson, 25 Hun, 303; Shaw v. McCarty, 2 Civ. Proc. R. 23.

Section 1357 of the Code, to which reference was made upon the argument, does not seem to conflict with this view. That section, it is true, gives a right of appeal to the Appellate Division from orders affecting substantial rights made in special proceedings arising only in courts of record. But under our construction of section 2260, which, as we have seen, relates to summary proceedings in justices' courts to recover possession of real property, a right of appeal is given to the Appellate Division in such proceedings, and section 1357, governing appeals generally in special proceedings, contains nothing which forbids such an appeal. It confers a right in such cases generally, but does not prohibit the right to appeal in other cases specially provided for. Under familiar rules these two provisions should be construed so as to harmonize with each other, and so as to give effect to both. In re Smith v. Board of Supervisors, 148 N. Y. 187, 193, 42 N. E. 592; People ex rel. Balcom v. Mosher, 163 N. Y. 32, 36, 57 N. E. 88, 79 Am. St. Rep. 552.

The order of the Appellate Division dismissing the appeal should be reversed, the question certified answered in the affirmative, and the proceeding remitted to the Appellate Division for hearing on the merits, with costs to abide the event.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and VANN, JJ., concur.

Order reversed.

(183 N. Y. 238)

In re PALMER'S ESTATE. (Court of Appeals of New York. Dec. 5, 1905.) TAXATION-TRANSFER TAX-STOCK OF NON

RESIDENT.

Where a nonresident at his death owns shares of the capital stock of a domestic corporation, such shares represent an interest in property within the jurisdiction of the state, and are taxable under the transfer tax act; and the assessment should be computed on the value of the interest of the decedent in the whole of the corporate property, as shown by the shares of which he died possessed, and not on the basis of the value representing the proportion of the capital and assets of the corporation employed within the state.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1682.]

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the estate of Potter Palmer, deceased. Proceedings by the Comptroller of the state of New York against Adrian C. Honoré, executor, and others. From an order of the Appellate Division (92 N. Y. Supp. 1137, 102 App. Div. 616), affirming an order of the Surrogate's Court assessing a tax on the estate, Honoré and others appeal. Affirmed.

Charles K. Carpenter, for appellants. Emmet R. Olcott, for respondent.

GRAY, J. Potter Palmer, a resident of the state of Illinois, died in 1902, and a portion of his estate consisted in 4,855 shares of the capital stock of the New York Central & Hudson River Railroad Company, a corporation of this state. This proceeding to appraise the value of that stock, under the transfer tax law of the state, for the imposition of a tax, resulted in the fixing of a tax upon the life estate of his widow only. Though some other questions were raised below on both sides, this appeal brings up no other than the question of any liability to be taxed here at all, and, if that be affirmed, the further question of the proper valuation of the stock for the purpose. The primary question, as to the liability to taxation under the provisions of our transfer tax law, must be regarded as having been determined by the decision of this court in Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632. In that case we held that, though the shares of capital stock of a domestic corporation were held and owned by a nonresident decedent, they represented an interest in property, which was within the jurisdiction of this state for the purpose of taxation, upon its transfer by operation of any law or by act of its owner. It is unnecessary to discuss the question further in the present case, whose facts bring it precisely within the authority of Bronson's Case.

The appellant claims, however, if the transfer of the stock is taxable, that the tax should only be "upon that proportion of its value which represents the proportion of the capital and assets of the company employed within the state of New York"; that is to say, because it was made to appear that about 36 per cent. of the corporate capital was invested in properties without the state, it is argued that the appraisement of the value of the capital stock, in this proceeding, should have been proportionately less. The basis for this claim is the proposition that the corporation itself is not taxable by the state upon its investments in railroad properties situated outside of the state, under the provisions of section 182 of the general tax law (Law 1896, p. 856, c. 908), which impose an annual franchise tax upon the corporation, measured by the amount of the capital stock employed within the state. People ex rel. N. Y. C. & H. R. R. R. Co. v. Knight, 173 N. Y. 255, 65 N. E. 1102. The error in the argument is in assuming that the assessment of the corporate franchise for taxation purposes proceeds upon the same principle upon which the interest of the holder of capital stock is taxed. The franchise tax, which is assessed against the corporation, is to be computed upon the value of property within the state in which the corporate capital is invested. People ex rel. U. S. A. P. P. Co. v. Knight, 174 N. Y. 475, 67 N. E. 65, 63 L. R.

A. 87; People ex rel. N. Y. C. & H. R. R. R. Co., v. Knight, supra. The assessment of the stockholder, however, is computed upon the value of his interest in the whole of the corporate property, as evidenced by the number of the shares of stock which he holds. Their market value may, or may not, represent proportionately the actual value of the corporate properties. Very often it does not, and the market value of the shares of capital stock may be quite disproportionately influenced by considerations or by circumstances having little reference to actual conditions. That value, whatever it may be in the market, is the worth attached to an interest in the corporate assets and properties, regarded as a whole. A share of capital stock represents the distinct interest which its holder has in the corporation, and his right to participate in the distribution of the net earnings of the corporation as a going concern, or in that of its assets upon a dissolution, is proportionate to the number of shares which he holds. They evidence the extent of his proprietary interest, and their assessment for taxation purposes must be upon that interest, regarded as an entity, and is unapportionable with reference to the situs of the corporate properties. The tax imposed by the state upon the transfer of such property upon the decease of it's owner is not upon the property which passes. It is upon the right of succession to it. The transfer tax act operates upon that general right to succeed to the interest of the deceased in the corporation, and it is inconceivable that the value of the interest, upon which the tax is computed, is determinable by the location of the corporate properties. I advise the affirmance of the order, with costs.

CULLEN, C. J., and O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

Order affirmed.

(183 N. Y. 242)

PEOPLE v. ZABOR.

(Court of Appeals of New York. Dec. 5, 1905.) INFANTS-TOBACCO-SALES TO MINor.

Evidence held insufficient to warrant a conviction under Pen. Code, § 290, subd. 5, making it a misdemeanor to sell, pay for, or furnish_cigars, cigarettes, or tobacco to a child under the age of 16, where the cigars were sold to the person for whom the boy was permitted to procure them; the boy acting merely as his agent, to the knowledge of the seller.

1

Appeal from Supreme Court, Appellate Division, First Department.

Louis Zabor was indicted for selling tobacco to children, and from an order of the Appellate Division (92 N. Y. Supp. 1139, 103 App. Div. 594), affirming a judgment of the Court of Special Sessions convicting the defendant, and also affirming orders disallowing

76 N.E.-2

a demurrer to the information and denying a new trial (90 N. Y. Supp. 412), defendant appeals. Reversed.

Charles H. Studin, for appellant. William Travers Jerome, Dist. Atty. (Edward Sandford, of counsel), for the People.

O'BRIEN, J. By section 290, subd. 5, of the Penal Code, it is made a misdemeanor to sell, pay for, or furnish any cigars, cigarettes, or tobacco in any form to any child actually or apparently under the age of 16 years. The defendant was convicted in one of the Courts of Special Sessions in the city of New York of a violation of this statute. The only written charge in the record against the defendant is contained in an affidavit of a peace officer, wherein it is alleged that the defendant, on the 21st of July, 1904, did unlawfully and willfully sell or give away one package of cigars to one Edward Gluck, a boy of about 12 years of age. defendant demurred to the charge on the ground that it was in the disjunctive form; that is, he was charged with selling or giving away to the boy the package of cigars. The court, in an exhaustive opinion, decided that the charge was good, although admitting that it would be bad in an indictment. Of course, the defendant could not tell from the language of the charge whether he had to meet the case of selling cigars or giving them away. But, without discussing this loose method of procedure, I prefer to examine the case on its merits.

The

The people were bound to prove beyond a reasonable doubt that the defendant did in fact sell or give away the package of cigars to a boy 12 years of age, and it seems to me that the record does not contain any such proof, or any proof which warranted the defendant's conviction. I cannot perceive that there is any conflict in the testimony, and the admitted facts in the case are these: The boy had never smoked in his life, and did not procure the cigars for that purpose. It appears that he lived with his mother, who kept a boarding house, and a man named Samuels was one of the boarders. The boy had been in the habit, on frequent occasions before the one in question, of going to the defendant's store at the request of Samuels or his mother to procure cigars, such as the package in question. He was furnished with the money to pay for them on the occasion in question and on all other occasions. He went to the defendant's store on the day stated in the charge and procured a package of what are called Jack Rose little cigars. He handed the defendant ten cents, and received back five cents in change. His mother testified that she sent him to the store on that day for the purpose of procuring the cigars. When he called for the cigars he told the defendant that they were for Samuels, and the defendant knew the fact; the boy having been sent on a similar errand many times before. The question is whether, upon these

facts, the defendant sold, paid for, or furnished any cigars, cigarettes, or tobacco in any form to a child under the age of 16 years, within the meaning of the statute. It cannot be possible that this statute makes it a criminal offense for a person to hand to a boy such a sealed package of cigars, when the boy is sent to procure them by his parents or other person. The defendant in fact and in law sold the cigars, not to the boy, but to Samuels; the boy acting merely as his agent.

The construction placed upon this statute by the court below, if carried out to its logical sequence, would involve conclusions quite absurd and ridiculous. It is, I assume, a fact that in hotels, restaurants, and clubs in the large cities boys of this age are employed as waiters, and if a boy, having been sent by a guest to procure for him a package of cigars, performs the errand, the person delivering them to him in a sealed package is guilty of a misdemeanor. Clearly the Legislature could not have intended any such results when enacting this statute. The purpose was to prohibit dealers from selling to boys cigars, cigarettes, or tobacco for their own use. It was to protect young boys against their own vices. The habit of using cigarettes by young boys had become so common and so harmful in its effects that it was thought that the dealer should be punished for aiding and encouraging the practice. But the transaction in question, as disclosed by the evidence, would seem to be entirely innocent. The boy's mother had sent him on this errand for the accommodation of one of the boarders. He simply obeyed his parent, telling the dealer just what the errand was and the purpose for which he desired the cigars. We are not dealing with a case where the agency was colorable only, and so understood by both parties.

I think that the judgment should be reversed, and the defendant discharged.

CULLEN, C. J., and GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. Judgment accordingly.

Under Laws 1896, p. 797, c. 908, § 4, exempting from taxation property of a municipal corporation held for public use, "except the portion of such property not within the corporation," and Greater New York Charter, Laws 1901, p. 214, c. 466, § 480, providing that lands taken for reservoirs and other constructions necessary for the introduction of a water supply in the city shall be assessed and taxed in the counties in which they are located, in the manner prescribed by law, the constructions placed upon real property of the city situated outside of the city limits in connection with the waterworks system are assessable for taxation in the town in which they are situated.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 356.]

Appeal from Supreme Court, Appellate Division, Second Department.

Application by the city of New York for a writ of certiorari against Richard Mitchell and others, as assessors of the town of Southeast. From an order of the Appellate Division (94 N. Y. Supp. 1111, 106 App. Div. 614), affirming an order confirming the proceedings of the assessors and dismissing the writ of certiorari, plaintiff appeals. Affirmed.

John J. Delany, Corp. Counsel (I. J. Beaudrias, of counsel), for appellant. Abram J. Miller, for respondents.

GRAY, J. The city of New York obtained a writ of certiorari, directed to the assessors of the town of Southeast, county of Putnam, in this state, which brought up for review their proceedings in assessing certain real property of the city for taxation in their district for the year 1902. This property consisted of tracts of land which had been acquired by the city in the past for the construction of reservoirs and for the protection of the city's water supply. The return of the assessors to the writ showed what properties had been the subjects of their assessment, the various facts upon which their determination had been reached, and their procedure. It appeared that, for the first time, they had included in the assessment the various constructions placed upon the land by the city, in connection with the waterworks system, and the increase based thereupon constituted the grievance of the city, and, though other questions were raised, relating to overvaluation and to inequality, it presents the only question which we shall consider.

The assessors justify their action as based upon the legislative amendment, in 1901, of section 480 of the Greater New York charter (Laws 1901, p. 214, c. 466), whereby whatever restrictions had theretofore existed. with respect to assessments of the city's properties for taxation purposes, had been removed. The question, therefore, is whether, in making their assessments, the property of the city should have been assessed at the value of the lands, exclusive of the aqueduct and of the constructions and works necessary for the municipal purposes, or whether the land should have been assessed, exclusive only of the aqueduct, in the manner prescribed by law with respect to all other lands. The general exemption, to which the municipality was entitled, with respect to property held and used for governmental and public purposes, was first affected by legislative enactment in 1840 (chapter 235, p. 185, Laws 1840), when its lands, not within corporate limits, were subjected to assessment and taxation at their value, but "exclusive of the aqueduct and the constructions and works necessary for its purposes." Acts subsequently passed, relating to the development and extension of the municipal waterworks system, substan

tially preserved this qualified exemption, down to the enactment of section 480 of the Greater New York charter of 1897 (Laws 1897, p. 167, c. 378). In 1901 (chapter 466, p. 214, Laws 1901) that section was amended so as to read as follows: "The lands heretofore taken or to be taken for storage, reservoirs, or for other constructions necessary for the introduction and maintenance of a sufficient supply of water in the city, or for the purpose of preventing contamination or pollution, snall be assessed and taxed in the counties in which they are or may be located, in the manner prescribed by law, exclusive of the aqueducts. But nothing in this section contained shall prevent the assessors in the county of Nassau from assessing the pumping stations and buildings located in such county." By this amendment the direction that the lands shall be assessed and taxed "at the value of the lands" and exclusive of "the constructions and works necessary for its purposes, provided that the assessed value of the said lands shall not exceed the assessed value of the lands in the immediate neighborhood," which was the language of preceding laws, was omitted.

I should say that the purpose of the legislation from 1840 to 1901 is sufficiently conspicuous. Originally, and until the general tax law of 1896 (Laws 1896, p. 795, c. 908) was passed, it was to take away from the city that right to exemption from taxation, which it enjoyed under the rule at common law, so far as the naked value of the lands held for aqueduct purposes was concerned. The general tax law, however, changed the rule and destroyed all distinctions in the taxation of property, by providing that "all real property within this state, and all personal property is taxable unless

exempt from taxation" (section 3), which exemption was of "property of a municipal corporation of the state held for a public use, except the portion of such property not within the corporation" (section 4). But, when the Legislature came to the enactment of the Greater New York charter in 1897, it was moved to restore to the city such exemptions from taxation of its aqueduct properties as it had previously enjoyed under special legislation. A few years later it again was moved, upon further consideration, to withdraw the exemptions and to leave this municipal property not within the corporation, exclusive only of the aqueduct, to be taxed as all other property was taxed within the state. In 1901 it broadly authorized the assessment and taxation of lands in the counties where they were located "in the manner prescribed by law," which was the equivalent of a command to follow the provisions of the general tax law, except so far as special local regulations might exist. Under the general tax law and by the general understanding, the term "lands." when used with reference to assess

ment for purposes of taxation, includes with the land, whether above or under water, all constructions which have been erected upon or affixed thereto.

The

It may be observed that a clause added to the section, to the effect that nothing therein should "prevent the assessors in the county of Nassau from assessing the pumping stations and buildings," furthers the argument, because of the possible implication that, as they were essential adjuncts or mechanical parts of the aqueduct itself, they would, without especial legislative mention, have come within the exemption from taxation accorded to the aqueduct. I think it to be clear that the words of section 480 of the charter, prior to 1901, "at the value of the lands exclusive of the aqueduct and the constructions and works," etc., imply that, except for such language, the assessment of the land for taxation could lawfully have comprehended such structures. change in language, when re-enacting the section in later years, so as to exclude only the aqueducts, has a significance too obvious to be argued away by refinements of reasoning upon the applicability of the general tax law to the situation after the amendment. There is neither injustice in this construction, nor any question of the legislative power. There is no reason why property acquired and used by the city of New York, outside of its territorial limits, should be exempted from taxation, and that the burden upon other taxpayers of the counties should be made heavier. The Legislature exercises a supreme power of taxation, which is unrestricted by other limits than are found in the Constitution of the state, and the courts are not concerned with the motives which influence legislative action. To require that the properties of municipalities, not within the corporation, should be taxed, as by the enactment of the general tax law of 1896, which changed the exemption at common law, was as clearly within its power as it was clearly wise and just.

I advise, therefore, that the order and Judgment below should be affirmed, with costs.

BARTLETT, J. I agree, as this decision is in accordance with the letter of the statute. Justice requires that the land should be assessed where situated. Not only the aqueduct, but its appurtenances, should be exempt. The Legislature ought to amend the statute in the interest of the city of New York, as it is engaged in a work of great public necessity.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, and WERNER, JJ., concur with GRAY, J.

Order and judgment affirmed.