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in the provisions of section 2260 of the Code the Appellate Division in summary proof Civil Procedure. That section provides : ceedings instituted in justices' courts and "An appeal may be taken from a final order, other inferior local courts, as we think it made as prescribed in this title, to the same does, the words "such an appeal," contained court, within the same time, and in the same in section 2261, used in connection with the manner, as where an appeal is taken from a allowance of an appeal to this court from judgment rendered in the court, of which the | the decision of the Appellate Division, quite judge or justice is the presiding officer ; , plainly fortify the conclusion that it was the * * * except as otherwise prescribed in legislative intent to permit an appeal in such the next two sections." The title of the a proceeding to the Appellate Division. This Code in which this section is found relates was the substance of section 2261 as applied exclusively to summary proceedings to re

to the old General Terms, and when the Code cover possession of real property. Chapter was amended in 1895 (chapter 946, p. 861, 17, tit. 2, $8 2231-2265. Section 2234 of that Laws 1895) to carry out the provisions of the title, so far as material, provides that the

Constitution of 1894, this section was amendapplication may be made either to the county

ed by substituting the Appellate Division judge or justice's court, to which latter court

for the General Term. Under Section 191, the City Court of Kingston corresponds in

subd. 1, relating to the jurisdiction of this this respect. This proceeding having been

court, no order or judgment made in an ac.stituted in that court, we shall treat it

tion or proceeding arising in justices' courts in this opinion as if it had been commenced

can be reviewed here without an allowance, in justice's court. We must look for some

and the language of section 2261 discloses an statute governing appeals from that court

attempt to assimilate the practice in sumin proceedings of this nature. We think sec

mary proceedings to that which is provided tion 2260, above quoted, is clearly applicable.

for appeals from judgment in justices' courts. It gives the right of appeal in the same man

As we have seen, section 2260 confers the ner and to the same court as from an ordi

same right of appeal from a final order in a nary judgment of such justice's court. By

summary proceeding as from a judgment of the plain terms of section 3405 of the Code,

the justice's court. Such an appeal must be the appeal from such a judgment is to the County Court. Thus we have a provision for

taken first to the County Court, and then to

the Appellate Division. To hold that this an appeal to the County Court in this pro

section does not apply to final orders in speceeding. So far the matter is plain. But we must go further, and see what

cial proceedings instituted in justices' courts provision, if any, is made for a further ap

would require a narrow and arbitrary conpeal to the Appellate Division. If this were

struction of the language of that section. an appeal from a judgment of the justice's

There seems to be no good reason, morecourt, affirmed or reversed by the County

over, why the right to appeal should be thus Court, there would clearly be a right of appeal

limited in summary proceedings that is not under section 1340. But this is not a judg

equally applicable in other cases arising in ment. It is a final order in a special pro

justices' courts. That the right to appeal in ceeding. If the proceeding had been insti

summary proceedings is not now to be regardtuted in the County Court, as it might have

ed as thus limited is further borne out by the been, an appeal to the Appellate Division

history of the section in question. The prowould be authorized by section 1357, as the

ceedings for review of decisions of justices' County Court is a court of record, and the

courts in such proceedings were formerly section cited authorizes such appeals in pro

governed by the Revised Statutes (part 3, c. ceedings instituted in a court of record.

8, tit. 10, § 52; 2 Edmonds' St. p. 534), which Since there was no necessity for providing provided that “the proceedings before such for an appeal by section 2260 in a proceeding justice may be removed by appeal to the instituted in the County Court, the unmis. County Court of the county, in the same man. takable inference is that the right to appeal ner, and with like effect, and upon like se. conferred by section 2260, so far as appeals curity, as appeals from the judgment of jus. to the Appellate Division are concerned, was tices of the peace in civil actions, except that intended to relate to appeals in proceedings the decision of such county judge shall be an instituted in justices' courts and other in affirmance or reversal of such judgment, and ferior local courts. That this was the pur be final.” When the Code of Civil Procedure pose of the Legislature in the enactment of was enacted in 1880, the section quoted was section 2260 is very forcibly illustrated by the adopted after expunging the words importsucceeding section (section 2261), which seems ing finality in the County Court, and since to contemplate the right to a second appeal then the section has remained in substanto the Appellate Division of the Supreme tially the present form. The omission of these Court in summary proceedings instituted in words of finality is significant, if not conclujustices' courts. Section 2261 provides, in sive. It was done, as was explained by Mr. substance, that an appeal cannot be taken Throop in his notes to that section, in order to the Court of Appeals upon such an appeal" to assimilate the proceedings to those which unless the Appellate Division shall allow the obtain in all other cases where the decisions same. If section 2260 relates to appeals to of the same officers are reviewed Warner v.

Henderson, 25 Hun, 303; Shaw v. McCarty, 21 GRAY, J. Potter Palmer, a resident of Civ. Proc. R. 23.

the state of Illinois, died in 1902, and a porSection 1357 of the Code, to which refer. tion of his estate consisted in 4,855 shares ence was made upon the argument, does not of the capital stock of the New York Central seem to conflict with this view. That sec- & Hudson River Railroad Company, a cortion, it is true, gives a right of appeal to the poration of this state. This proceeding to Appellate Division from orders affecting sub appraise the value of that stock, under the stantial rights made in special proceedings transfer tax law of the state, for the imarising only in courts of record. But under position of a tax, resulted in the fixing of a our construction of section 2260, which, as tax upon the life estate of his widow only. we have seen, relates to summary proceedings Though some other questions were raised in justices' courts to recover possession of below on both sides, this appeal brings up real property, a right of appeal is given to the

no other than the question of any liability Appellate Division in such proceedings, and to be taxed here at all, and, if that be affirmsection 1357, governing appeals generally in ed, the further question of the proper valuspecial proceedings, contains nothing which ation of the stock for the purpose. The forbids such an appeal. It confers a right primary question, as to the liability to taxin such cases generally, but does not prohibit

ation under the provisions of our transfer the right to appeal in other cases specially

tax law, must be regarded as having been provided for. Under familiar rules these determined by the decision of this court in two provisions should be construed so as to

Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, harmonize with each other, and so as to give

34 L. R. A. 238, 55 Am. St. Rep. 632. In that effect to both. In re Smith v. Board of

case we held that, though the shares of Supervisors, 148 N. Y. 187, 193, 42 N. E. 592;

capital stock of a domestic corporation were People ex rel. Balcom v. Mosher, 163 N. Y.

held and owned by a nonresident decedent, 32, 36, 57 N. E, 88, 79 Am. St. Rep. 552.

they represented an interest in property, The order of the Appellate Division dis

which was within the jurisdiction of this missing the appeal should be reversed, the

state for the purpose of taxation, upon its question certified answered in the affirmative,

transfer by operation of any law or by act and the proceeding remitted to the Appellate

of its owner. It is unnecessary to discuss Division for hearing on the merits, with

the question further in the present case, costs to abide the event.

whose facts bring it precisely within the CULLEN, C. J., and GRAY, O'BRIEN, authority of Bronson's Case. BARTLETT, HAIGHT, and VANN, JJ., The appellant claims, however, if the concur.

transfer of the stock is taxable, that the Order reversed.

tax should only be "upon that proportion of

its value which represents the proportion of (193 N. Y. 238)

the capital and assets of the company em

ployed within the state of New York"; that In re PALMER'S ESTATE.

is to say, because it was made to appear (Court of Appeals of New York. Dec. 5, 1905.)

that about 36 per cent. of the corporate TAXATION–TRANSFER Tax-STOCK OF NON

capital was invested in properties without RESIDENT.

Where a nonresident at his death owns the state, it is argued that the appraisement shares of the capital stock of a domestic corpora of the value of the capital stock, in this tion, such shares represent an interest in prop proceeding, should have been proportionately erty within the jurisdiction of the state, and are taxable under the transfer tax act; and the

less. The basis for this claim is the proposi. assessment should be computed on the value tion that the corporation itself is not taxof the interest of the decedent in the whole of able by the state upon its investments in the corporate property, as shown by the shares of which he died possessed, and not on the basis

railroad properties situated outside of the of the value representing the proportion of the

state, under the provisions of section 182 of capital and assets of the corporation employed the general tax law (Law 1896, p. 856, c. within the state.

908), which impose an annual franchise tax [Ed. Note. For cases in point, see vol. 45,

upon the corporation, measured by the Cent. Dig. Taxation, $ 1682.)

amount of the capital stock employed with(Appeal from Supreme Court, Appellate

in the state. People ex rel. N. Y. C. & H. Division, First Department.

R. R. R. CO. V. Knight, 173 N. Y. 255, 65 In the matter of the estate of Potter Palm

N. E. 1102. , The error in the argument is in er, deceased. Proceedings by the Comp

assuming that the assessment of the cortroller of the state of New York against

porate franchise for taxation purposes proAdrian C. Honoré, executor, and others.

ceeds upon the same principle upon which From an order of the Appellate Division

the interest of the holder of capital stock (92 N. Y. Supp. 1137, 102 App. Div. 616), af

is taxed. The franchise tax, which is asfirming an order of the Surrogate's Court as

sessed against the corporation, is to be comsessing a tax on the estate, Honoré and

puted upon the value of property within the others appeal. Affirmed.

state in which the corporate capital is inCharles K. Carpenter, for appellants. vested. People ex rel. U. S. A. P. P. Co. v. Emmet R. Olcott, for respondent.

I Knight, 174 N. Y. 475, 67 N. E, 65, 63 L. R. A. 87; People ex rel. N. Y. C. & H. R. R. , a demurrer to the information and denying R. CO., v. Knight, supra. The assessment a new trial (90 N. Y. Supp. 412), defendant of the stockholder, however, is computed up | appeals. Reversed. on the value of his interest in the whole of

Charles H. Studin, for appellant. William the corporate property, as evidenced by the

Travers Jerome, Dist. Atty. (Edward Sandnumber of the sbares of stock which he

ford, of counsel), for the People. bolds. Their market value may, or may not, represent proportionately the actual value of O'BRIEN, J. By section 290, subd. 5, of the corporate properties. Very often it does

the Penal Code, it is made a misdemeanor not, and the market value of the shares of

to sell, pay for, or furnish any cigars, cigacapital stock may be quite disproportionate rettes, or tobacco in any form to any child ly influenced by considerations or by circum actually or apparently under the age of 16 stances having little reference to actual con years. The defendant was convicted in one ditions. That value, whatever it may be in of the Courts of Special Sessions in the the market, is the worth attached to an in city of New York of a violation of this statterest in the corporate assets and properties, ute. The only written charge in the record regarded as a whole. A share of capital against the defendant is contained in an affistock represents the distinct interest which davit of a peace officer, wherein it is alleged its holder has in the corporation, and his that the defendant, on the 21st of July, 1904, right to participate in the distribution of did unlawfully and willfully sell or give the net earnings of the corporation as a away one package of cigars to one Edward going concern, or in that of its assets upon Gluck, a boy of about 12 years of age. The a dissolution, is proportionate to the number defendant demurred to the charge on the of shares which he holds. They evidence ground that it was in the disjunctive form; the extent of his proprietary interest, and that is, he was charged with selling or giving their assessment for taxation purposes must away to the boy the package of cigars. The be upon that interest, regarded as an entity, court, in an exhaustive opinion, decided that and is unapportionable with reference to the charge was good, although admitting that the situs of the corporate properties. The it would be bad in an indictment. Of course, tax imposed by the state upon the transfer the defendant could not tell from the lanof such property upon the decease of its own. guage of the charge whether he had to meet er is not upon the property which passes. the case of selling cigars or giving them away. It is upon the right of succession to it. The But, without discussing this loose method of transfer tax act operates upon that general procedure, I prefer to examine the case on its right to succeed to the interest of the de merits. ceased in the corporation, and it is incon

The people were bound to prove beyond a ceivable that the value of the interest, upon

reasonable doubt that the defendant did in which the tax is computed, is determinable

fact sell or give away the package of cigars by the location of the corporate properties.

to a boy 12 years of age, and it seems to me I advise the affirmance of the order, with

that the record does not contain any such costs.

proof, or any proof which warranted the de

fendant's conviction. I cannot perceive that CULLEN, C. J., and O'BRIEN, BART

there is any conflict in the testimony, and the LETT, HAIGHT, VANN, and WERNER,

admitted facts in the case are these: The JJ., concur.

boy had never smoked in his life, and did not

procure the cigars for that purpose. It apOrder affirmed.

pears 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 (183 N. Y. 242)

in the babit, on frequent occasions before PEOPLE V. ZABOR.

the one in question, of going to the defend(Court of Appeals of New York. Dec. 5, 1905.) ant's store at the request of Samuels or INFANTS-TOBACCO-SALES TO MINOR. . his mother to procure cigars, such as the

Evidence held insufficient to warrant & package in question. He was furnished with conviction under Pen. Code, $ 290, subd. 5, making it a misdemeanor to sell. pay for, or

the money to pay for them on the occasion in furnish cigars, cigarettes, or tobacco to a child

question and on all other occasions. He under the age of 16, where the cigars were sold went to the defendant's store on the day to the person for whom the boy was permitted stated in the charge and procured a package to procure them; the boy acting merely as his agent, to the knowledge of the seller.

of what are called Jack Rose little cigars.

He handed the defendant ten cents, and reAppeal from Supreme Court, Appellate ceived back five cents in change. His mother Division, First Department.

testified that she sent him to the store on that Louis Zabor was indicted for selling to day for the purpose of procuring the cigars. bacco to children, and from an order of the When he called for the cigars he told the deAppellate Division (92 N. Y. Supp. 1139, 103 fendant that they were for Samuels, and the App. Div. 594), affirming a judgment of the defendant knew the fact; the boy having Court of Special Sessions convicting the de- been sent on a similar errand many times befendant, and also affirming orders disallowing | fore. The question is whether, upon these

76 N.E.-2

facts, the defendant sold, paid for, or fur- | Appeal from Supreme Court, Appellate nished any cigars, cigarettes, or tobacco in Division, Second Department. any form to a child under the age of 16 years, | Application by the city of New York for within the meaning of the statute. It cannot a writ of certiorari against Richard Mitchell be possible that this statute makes it a and others, as assessors of the town of criminal offense for a person to hand to a Southeast. From an order of the Appellate boy such a sealed package of cigars, when the Division (94 N. Y. Supp. 1111, 106 App. Div. boy is sent to procure them by his parents or 614), affirming an order confirming the proother person. The defendant in fact and in ceedings of the assessors and dismissing the law sold the cigars, not to the boy, but to writ of certiorari, plaintiff appeals. Affirmed. Samuels; the boy acting merely as his agent.

John J. Delany, Corp. Counsel (1. J. The construction placed upon this statute

Beaudrias, of counsel), for appellant. Abram by the court below, if carried out to its logical

J. Miller, for respondents. sequence, would involve conclusions quite absurd and ridiculous. It is, I assume, a fact GRAY, J. The city of New York obtained that in hotels, restaurants, and clubs in the a writ of certiorari, directed to the assessors large cities boys of this age are employed as | of the town of Southeast, county of Putnam, waiters, and if a boy, having been sent by a in this state, which brought up for review guest to procure for him a package of cigars, their proceedings in assessing certain real performs the errand, the person delivering property of the city for taxation in their disthem to him in a sealed package is guilty of trict for the year 1902. This property cona misdemeanor. Clearly the Legislature could sisted of tracts of land which had been acnot have intended any such results when en quired by the city in the past for the conacting this statute. The purpose was to pro struction of reservoirs and for the protec. hibit dealers from selling to boys cigars, tion of the city's water supply. The return cigarettes, or tobacco for their own use. It of the assessors to the writ showed what was to protect young boys against their own properties had been the subjects of their vices. The habit of using cigarettes by young assessment, the various facts upon which boys had become so common and so harmful their determination had been reached, and in its effects that it was thought that the their procedure. It appeared that, for the dealer should be punished for aiding and en first time, they had included in the assesscouraging the practice. But the transaction ment the various constructions placed upon in question, as disclosed by the evidence, the land by the city, in connection with the would seem to be entirely innocent. The

waterworks system, and the increase based another had sent him on this errand for thereupon constituted the grievance of the the accommodation of one of the boarders. city, and, though other questions were raised, He simply obeyed his parent, telling the relating to overvaluation and to inequality, dealer just what the errand was and the it presents the only question which we shall purpose for which he desired the cigars. We consider. are not dealing with a case where the agency The assessors justify their action as based was colorable only, and so understood by both upon the legislative amendment, in 1901, of parties.

section 480 of the Greater New York charter I think that the judgment should be re (Laws 1901, p. 214, c. 466), whereby whatversed, and the defendant discharged.

ever restrictions bad theretofore existed, CULLEN, C. J., and GRAY, BARTLETT,

with respect to assessments of the city's

properties for taxation purposes, had been HAIGHT, VANN, and WERNER, JJ., concur.

removed. The question, therefore, is whether, Judgment accordingly.

in making their assessments, the property of the city should have been assessed at the

value of the lands, exclusive of the aque(183 N. Y. 245)

duct and of the constructions and works In re CITY OF NEW YORK.

necessary for the municipal purposes, or (Court of Appeals of New York. Dec. 5, 1905.)

whether the land should have been assessed, TAXATION - EXEMPTIONS-PROPERTY OF MU exclusive only of the aqueduct, in the manNICIPALITY.

ner prescribed by law with respect to all Under Laws 1896, p. 797, c. 908, $ 4, exempting from taxation property of a municipal cor

other lands. The general exemption, to poration held for public use, “except the portion which the municipality was entitled, with of such property not within the corporation," respect to property held and used for govand Greater New York Charter, Laws 1901, p.

ernmental and public purposes, was first 214, c. 466, $ 480, providing that lands taken for reservoirs and other constructions necessary

affected by legislative enactment in 1840 for the introduction of a water supply in the (chapter 235, p. 185, Laws 1840), when its city shall be assessed and taxed in the counties

lands, not within corporate limits, were subin which they are located, in the manner prescribed by law, the constructions placed upon

jected to assessment and taxation at their real property of the city situated outside of

value, but "exclusive of the aqueduct and the city limits in connection with the water the constructions and works necessary for works system are assessable for taxation in the its purposes.” Acts subsequently passed, retown in which they are situated. [Ed. Note. For cases in point, see vol. 45,

lating to the development and extension of Cent. Dig. Taxation, $ 356.]

the municipal waterworks system, substantially preserved this qualified exemption, 1 ment for purposes of taxation, includes with down to the enactment of section 480 of the the land, whether above or under water, all Greater New York charter of 1897 (Laws constructions which have been erected upon 1897, p. 167, C. 378). In 1901 (chapter 466, or affixed thereto. p. 214, Laws 1901) that section was amended It may be observed that a clause added to so as to read as follows: "The lands here the section, to the effect that nothing theretofore taken or to be taken for storage, in should "prevent the assessors in the reservoirs, or for other constructions neces- 1 county of Nassau from assessing the pumpsary for the introduction and maintenance ing stations and buildings," furthers the arof a sufficient supply of water in the city, gument, because of the possible implication or for the purpose of preventing contamina

that, as they were essential adjuncts or tion or pollution, shall be assessed and taxed

mechanical parts of the aqueduct itself, they in the counties in which they are or may would, without especial legislative mention, be located, in the manner prescribed by law, have come within the exemption from taxexclusive of the aqueducts. But nothing in

ation accorded to the aqueduct. I think it this section contained shall prevent the as to be clear that the words of section 480 sessors in the county of Nassau from assess

of the charter, prior to 1901, “at the value ing the pumping stations and buildings lo

of the lands exclusive of the aqueduct and cated in such county." By this amendment the constructions and works," etc., imply the direction that the lands shall be assessed

that, except for such language, the assessand taxed "at the value of the lands” and

ment of the land for taxation could lawfully exclusive of "the constructions and works

have comprehended such structures. The necessary for its purposes, provided that the

change in language, when re-enacting the assessed value of the said lands shall not

section in later years, so as to exclude only exceed the assessed value of the lands in

the aqueducts, has a significance too obvious the immediate neighborhood," which was

to be argued away by refinements of reasonthe language of preceding laws, was omitted.

ing upon the applicability of the general tax I should say that the purpose of the legis

law to the situation after the amendment. lation from 1840 to 1901 is sufficiently con

There is neither injustice in this construcspicuous. Originally, and until the general

tion, nor any question of the legislative powtax law of 1896 (Laws 1896, p. 795, c. 908)

er. There is no reason why property acwas passed, it was to take away from the

quired and used by the city of New York, city that right to exemption from taxation,

outside of its territorial limits, should be which it enjoyed under the rule at common

exempted from taxation, and that the burden law, so far as the naked value of the lands

upon other taxpayers of the counties should held for aqueduct purposes was concerned.

be made heavier. The Legislature exercises The general tax law, however, changed the

a supreme power of taxation, which is unrule and destroyed all distinctions in the

restricted by other limits than are found taxation of property, by providing that "all

in the Constitution of the state, and the real property within this state, and all per

courts are not concerned with the motives sonal property

is taxable unless

which influence legislative action. To reexempt from taxation" (section 3), which

quire that the properties of municipalities, exemption was of "property of a municipal

not within the corporation, should be taxed, corporation of the state beld for a public

as by the enactment of the general tax law use, except the portion of such property not

of 1896, which changed the exemption at within the corporation" (section 4). But,

common law, was as clearly within its power when the Legislature came to the enactment

as it was clearly wise and just. of the Greater New York charter in 1897,

I advise, therefore, that the order and it was moved to restore to the city such ex

judgment below should be affirmed, with emptions from taxation of its aqueduct

costs. properties as it had previously enjoyed under special legislation. A few years later

BARTLETT, J. I agree, as this decision it again was moved, upon further consideration, to withdraw the exemptions and to

is in accordance with the letter of the statleave this municipal property not within the

ute. Justice requires that the land should corporation, exclusive only of the aqueduct,

be assessed where situated. Not only the to be taxed as all other property was taxed

aqueduct, but its appurtenances, should be within

exempt. The Legislature ought to amend the state. In 1901 it broadly authorized the assessment and taxation of

the statute in the interest of the city of lands in the counties where they were lo

New York, as it is engaged in a work of cated "in the manner prescribed by law,"

great public necessity. which was the equivalent of a command to follow the provisions of the general tax law,

CULLEN, C. J., and O'BRIEN, HAIGHT, except so far as special local regulations

VANN, and WERNER, JJ., concur with might exist. Under the general tax law

GRAY, J. and by the general understanding, the term "lands," when used with reference to assess Order and judgment affirmed.

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