#### The People ex rel. Eden Musee Americain Co., Limited, Relator, *v.*Thomas L. Feitner et al., Commissioners of Taxes, Respondents.

(Supreme Court, New York Special Term,

November, 1900.)

Tax — Assessment of capital and surplus of a corporation — Error, in assessing to a corporation land leased by it, when not material.

In determining the actual value of the assessable property of a corporation the assessed value of its real estate must be deducted from its assets, but the difference between the actual and the assessed value of the assessable property, as represented by the cost, must be included in the taxable capital and surplus.

Therefore, where tax commissioners ’ assess the cost of a building erected by a corporation upon leased land, and constituting its only real estate, at a sum not in excess of its. cost as carried on the corporate books, their inadvertence, in having assessed both the leased land and the building to the corporation, cannot be made by it the basis of an application to reduce its assessment upon capital and surplus by the entire amount of the real estate assessment, where the corporation has not, in the result, been assessed more than the actual value of its capital and surplus and particularly where it had agreed, in the lease, to pay the taxes on the land.

Cebtiobabi to review an assessment for taxation.

G. Davis, for relator.

John Whalen, Corporation Counsel, for respondents.

Andrews, G. P., J.

Certiorari to review an assessment for taxation in 1899. The capital and surplus of the relator were valued by the deputy tax commissioner at $350,000. While the books were ■ open for correction an application was presented to, the commissioners asking for a revision of such assessment, and upon such application the following facts appeared: The relator was capitalized at $330,000, and was the owner of real and personal property of the value of $275,329, of which amount $243,920.89 represented the cost of the building erected by the relator upon leased

*33land, and $31,400 represented the value of certain personal property. In such application the relator brought to the attention of the commissioners the assessed value of its real estate, consisting ef the premises, section 3, vol. 2, lot No. 825, Ward Map No. 12, being a description which included both the land and buildings erected thereon, at No. 55 West Twenty-third street, in the borough ef Manhattan, such assessed value being $270,000. It appears that the land was not owned by the relator, and that such land and the building erected thereon were assessed together at said valuation ef $270,000; and that it did own the building, for which it had paid out for cost of construction the sum of $243,929.89, and that such building was carried as an asset upon the books of the relator at that sum; also that the; relator occupied the ground under a twenty-year lease, with a covenant of renewal and a covenant to pay the taxes, both on the land and on the building. It appears from the return to the writ that the land in question was assessed at $165,000 and the building at $105,000. The commissioners fixed the total value of the assets of the corporation, which consisted of the building, the lease in question, and certain personal property, at $275,329, and then allowed by way of reduction for an indebtedness of $6,514, and $105,000, the assessed value of the real estate owned by the relator, consisting of the building in question, and found á taxable balance of capital and surplus of $163,815, but the assessment was fixed at the sum of $100,000 only. _ Before the relator can obtain a correction of the assessment as fixed by the defendant, it must affirmatively show that it is aggrieved by such assessment, and that the value of its capital and surplus as so fixed is in excess of its actual value, irrespective of the method by whichfhe result was reached. Greater N. Y. Charter, § 906; Gen. Tax Laws of 1896, § 250; People ex rel. Equitable Gas Light Co. v. Barker, 66 Hun, 23, 24, 28; affd., 137 N. Y. 544. Assuming that the real estate was assessed in its entirety to the relator, although the land itself did not belong to it, the relator was not thereby aggrieved, because of the covenant in its lease to pay the taxes upon the land as well as upon the building; and there is no dispute about the fact that the land itself was assessed at $165,000, and the building, which was the only real estate owned by the relator, was assessed at $105,000, although it is admitted that the relator expended $243,929.89 in erepting the same. It has been repeatedly decided that, in determining the actual value of the assessed *34property of a corporation for the purpose of taxation, the commissioners are authorized and required to deduct the assessed value only of the real estate, and to include in the capital and surplus the difference between the assessed and the actual value as represented by its cost. People ex rel. Equitable Gas Light Co. v. Barker, 144 N. Y. 94; People ex rel. N. Y. Clearing House Building Co. v. Barker, 23 Misc. Rep. 192; affd., 31 App. Div. 315; affd., 158 N. Y. 709; Jenkins v. Neff, 163 N. Y. 320. It is claimed by the relator’s counsel that the method pursued by the commissioners resulted in a double assessment; but, in view of the decisions above cited, this contention cannot be sustained. It is certainly entirely clear that the relator was not entitled to have a deduction made of the sum of $270,000 because it did not own the land, and the fact that the land had been inadvertently -assessed in the name of the relator does not alter the case. No obligation to, pay the taxes upon the land arose by reason of such assessment; such obligation arising only because of the covenant in its lease to pay such taxes. The only real estate belonging to the relator was its building; that, as above stated, was assessed at the sum of $105,000-, and that was all the relator was entitled to have deducted. The assessment made by the tax commissioners was neither illegal nor double. The real grievance of the relator, if it has any, is that in estimating the value of its assets, the commissioners placed too high a valuation upon the building, namely, $243,929.89; but it appeared by the relator’s own showing that that was the actual cost of the building, and that the building was carried as an asset upon its books at that amount, and that the lease" contained a covenant for a renewal.

There is nothing whatever before the court which would justify it in attempting to review the valuation so placed by the commissioners upon the building, and, besides, it has been frequently held that where no error of law was committed, and the commissioners have acted in good faith, upon reasonable grounds, in the exercise of their best judgment, their decision upon a question of value will not be disturbed. The writ will be quashed, with costs.

Writ quashed, with costs.