EARL, J.
The relator is a foreign corporation having its charter and local habitation in the state of Delaware. The comptroller, claiming that it was "doing business in this state," imposed taxes upon it, on account of such business, under the act chapter 542 of the Laws of 1880, and the acts amendatory thereof (chapter 361, Laws of 1881; chapter 501, Laws of 1885; chapter 463, Laws of 1889), for the years 1889, 1890 and 1891, computing the taxes upon the basis of $25,000, capital stock "employed within this state." Subsequently, the relator, claiming that it did not do any business or employ any of its capital within this state, applied to the comptroller to review and readjust the taxes; and after hearing the relator and reviewing and considering its evidence submitted to him, he refused to make any change in the taxes imposed.
Subsequently the relator obtained a writ of certiorari to review the action of the comptroller, to which he made return, and the General Term affirmed his action.
The comptroller makes some preliminary objections to the maintenance of this proceeding, not involving the merits, which must first be considered. He claims that the application for the certiorari was not made within thirty days after service upon the relator of the notice of the settlement of the taxes, as required by section 17 of the act of 1885. It is quite true from the dates given in this record that the certiorari was not applied for in time. But it does not appear that such a point was taken in the court below. There the proceeding seems to have been entertained without any such objection, and the action of the comptroller was affirmed. If he desired to avail himself of such an objection he should have moved there on that ground to quash the writ, and that would have given the relator an opportunity to meet the objection by showing that by some agreement or estoppel he could not avail himself thereof. It is too late now for the first time to raise the objection.
The comptroller further claims that the relator did not submit to him any competent evidence upon its application for a review or resettlement of the taxes as required by section 20 of the act of 1889. It appears that the relator did not furnish witnesses to be sworn and examined orally before the comptroller. The evidence was in the form of affidavits furnished to and received by him. His decision shows that he considered the affidavits as evidence, and it does not appear that anyone objected to them as competent and sufficient evidence. The comptroller could doubtless have required the witnesses to be examined orally before him. But it was for him to determine how the evidence should be presented before him, and in this, as in many other legal proceedings, affidavits may be received and treated as competent evidence.
So the merits of this controversy are before us and it must be determined upon the facts appearing in this record. There is no dispute about the facts.
The business of the relator was to manufacture steamships and railway cars, and to equip and repair the same, and all that business was carried on in the state of Delaware. There all the parties interested in the relator and all its officers resided, and there all its real business transactions were conducted. All its contracts were made there and all its products were sold and delivered there. It did no manufacturing in this state, kept no money here and had no property here except a small amount of office furniture, and in fact it transacted none of its corporate business here. It kept a hired office in the city of New York which was in charge of a resident salaried agent, and the office was maintained "solely for the convenience of itself and patrons, the only design of said office being a meeting place for the discussion of questions which are likely to arise preliminary to the signing of contracts; for appointments and conferences with such of its patrons who, being in the city of New York from time to time, may desire the convenience of an office for communications with it, and for ascertaining through its agent in charge of the same what contracts are offering in that locality, and the character and responsibility of the parties offering the same, the contracts themselves being made and signed in every case at the home office in Wilmington;" and this is all the claimed business done by the relator in this state; and upon these facts can it be said that it was, within the meaning of the statute, "doing business in this state?" We leave this question unanswered, as we are satisfied that it did not employ any of its capital within this state, and that, therefore, there was no basis for the imposition of the taxes. As before stated, except the small amount of furniture in its office, it did not have or keep any property of any kind within this state, and it did not disburse any money in this state. The only obligations it incurred in this state were for the rent of the office and the salary of its agent, and they were discharged by checks drawn in the state of Delaware, on a Delaware bank, and paid in that state. Those checks were obligations of the relator, and not property in any sense belonging to it, and they were no portion of its capital. They operated as payments made in the state of Delaware, and there was no ground whatever for saying that it employed $25,000 of its capital, or any other sum, within this state. We do not think that the office furniture could fairly be considered as capital employed within this state. But even if it could be, the amount is too small for serious consideration under the acts mentioned.
We are, therefore, of opinion that the order of the General Term and the decision of the comptroller in the imposition of the taxes should be reversed, with costs of appeal to this court.
All concur, except MAYNARD, J., taking no part.
Order reversed.
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