(90 Hun, 537.)

#### PEOPLE ex rel. BROOKLYN EL. R. CO. v. ROBERTS, State Comptroller.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Taxation—Corporations—Value of Stock.

Under Laws 1880, c. 542, declaring it the duty of a corporation, in making its report to the comptroller for taxation, to estimate and appraise its capital stock at its actual cash value, “not less, however, than at the average price at which said stock sold for during said year,” and authorizing the comptroller, if dissatisfied with the valuation so made, to make one, complaint cannot be made of the comptroller’s valuation, it being the average price paid for the stock during the year, as shown by the testimony of the corporation’s auditor.

Certiorari, on the relation of the Brooklyn Elevated Railroad Company, to review a valuation made by James A. Roberts, comptroller of the state, for taxation. Writ quashed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Hoadly, Lauterbach & Johnson (William H. Page, Jr., and Frederick P. Delañeld, of counsel), for relator.

T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Dep. Atty. Gen., of counsel), for the comptroller.

PUTNAM, J.

This is a proceeding brought to review a valuation made by the comptroller of the state of the capital stock of the Brooklyn Elevated Railroad Company for the purpose of taxation for the year 1893, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory and supplementary thereto. Relator contends that the comptroller erred in the principle upon which he proceeded in making the valuation. On the 16th day of November, 1893, .relator made a report, under the provisions of section 1 of the act of 1880, by which it appraised its capital stock at $20 per share. The' comptroller, being dissatisfied with such appraisal, made a valuation of said stock at $30 per share. Thereafter, on motion for a rehearing, he reappraised the stock at $295/e per share. Under section 1 of the act of 1880, it was the duty of the Brooklyn Elevated Railroad Company, in making its report to the comptroller, to estimate and appraise its capital stock at its actual cash value, “not less, however, than at the average price at which said stock sold for during said *35year”; and the statute provides that, if the comptroller was not satisfied with the valuation so made, he was authorized to make a valuation thereof, and to settle an account upon the valuation so made by him for the taxes, penalties, and interest due the state thereon.

■The only question that need be considered is whether or not it is shown by the papers and evidence submitted to us that the comptroller, in making the valuation of relator’s capital stock, appraised it at a sum aboxre the axrerage price at which said stock sold during the year. It was not necessary for him to ascertain the “intrinsic” or the actual value of the stock in cash, unless that exceeded the market value, as, under the statute, he was obliged to appraise it at a sum not less than the average price at which said stock sold during the year. It is well settled that, in a proceeding to review the action of the comptroller in imposing a tax under the act of 1880, the burden is upon the relator to show the error or mistake, if any, of the comptroller. People v. Campbell, 80 Hun, 466, 30 N. Y. Supp. 472. It is said by Gray, J., in People v. Wemple, 129 N. Y., at page 565, 29 N. E. 812: “The determination of the comptroller as to an assessment and taxation, unless clearly shown to have been erroneous, should not be disturbed.” And in People v. Wemple, 138 N. Y., at page 583, 34 N. E. 386, O’Brien, J., says in regard to an assessment by the comptroller under the act of 1880: “His determination as to the amount of the tax should not be disturbed now, unless it clearly appears to be erroneous.” It was not, therefore, as the learned counsel for the relator assumes, incumbent on the comptroller to show that his valuation of relator’s stock, and his determination as to the market value thereof, was right, but, on the contrary, the burden was upon the relator to show the error, if any, of the comptroller.

After a careful examination of the papers submitted to us and the evidence taken in the case, we find it impossible to say that the relator established the fact that the xmluation placed upon its stock by the comptroller was greater than the average price which said stock sold for during the year allowed. The only witness who testified before the comptroller was Mr. Longyear, auditor of relator, and produced by it as a witness. He swore that the stock sold during the year in question from 19 to 40§, 19 being the lowest, and 40f the highest, sum paid for the stock; that the average market value, as shown by the quotations, during such year was 295/s, that being the valuation placed upon said stock by the comptroller. It is impossible, therefore, to say that the relator proved any error or mistake on the part of the comptroller in fixing the valuation of its stock The statute prescribed that its valuation should not be less than the average price for which said stock sold during the year. It was shown that there had been sales of the stock of relator during that period, and its own witness fixed the average price thereof at the sum at which the comptroller valued its capital stock. We are of opinion that the papers and evidence submitted sustain the determination made by the comptroller.

Determination of the comptroller confirmed, and writ of certiorari quashed, with $50 costs, printing, and other disbursements. All concur.