attitude of a surety for the extinguishment of the indebtedness, and as between himself and the owner of his lot, that was made the primary source of payment for the benefit of the plaintiff, he was entitled in equity to bring this action for the enforcement of the charge in this manner created, and the satisfaction and payment of the amount due to him as the expense of building onehalf the wall. Pratt v. Adams, 7 Paige, 615, where the principle was stated to be that "it has been settled by a long course of judicial decisions that where a person standing in the situation of indorser or surety is furnished or provided by the principal debtor with a fund or with collateral security for such a purpose, the creditor is in equity entitled to have it applied in satisfaction of the debt." Id. 627. And by the conveyances which were made of the property the plaintiff seems to be so far within this principle as to entitle him to enforce the charge created in this manner against the land, for the satisfaction of his demand. And the regular mode of satisfying the demand out of the land was to direct a sale of it, as the judgment has done in this instance, and the payment of the proceeds, so far as they may be necessary for that object, over to the plaintiff. The case of Bedell v. Kennedy, 38 Hun, 510, has gone even further than this, holding that a personal liability exists against the grantee of property acquiring title in this manner for the performance of a party-wall agreement. It is not necessary to consider whether that case is in harmony with the other authorities or not. It is a determination of this general term, and sanctions so much of the judgment as has provided for the recovery of any deficiency, after the sale of the land, from the defendant; and as long as this authority remains, as it still does, in legal force, it is required to be followed, and it supplies a sufficient support for the portion of the judgment sustaining this agreement as a personal obligation against the defendant. To dispose of the case it is unnecessary to refer to any other of the authorities cited, for the judgment appears to be right, and it should be affirmed, with costs. All concur.

PEOPLE ex rel. CENTRAL PARK, N. & E. R. R. Co. v. COMMISSIONERS OF TAXES AND ASSESSMENTS.

(Supreme Court, General Term, First Department. January 28, 1889.) 1. TAXATION-TAXABLE PROPERTY-RAILROAD COMPANIES.

A street railway, including its bed and superstructure, is liable to taxation as real estate, under 2 Rev. St. N. Y. (7th Ed.) p. 981, § 2, providing that "land, ""; ""real estate," or "real property," as used in the chapter concerning taxation, shall include all surface, under-ground, or elevated railroads, railroad structures, substructures, superstructures, tracks, etc., branches, switches, and other fixtures authorized to be laid, etc., in any public or private road, street, or grounds.

2. SAME-CORRECTION OF ASSESSMENTS-CERTIORARI.

A tax-payer in New York city who neglects to apply to the tax commissioners to correct an assessment as prescribed by Laws N. Y. 1882, c. 410, § 820, cannot question it on certiorari.

3. CERTIORARI-PLEADING AND PROOF-DENIAL OF PETITION.

On certiorari to review and correct assessments, denials of excessive valuation of relator's property, or of failure to properly value and assess other property, they being responsive to statements in the petition, are conclusive, when not overcome by proof.

Appeal from special term, New York county.

Writ of certiorari issued on relation of the Central Park, North & East River Railroad Company to the commissioners of taxes and assessments of the city of New York, to review and correct assessments. The assessments were confirmed, the writ dismissed, and relator appeals. Laws N. Y. 1881, c. 293, amend Rev. St. pt. 1, c. 13, tit. 1, § 2, as follows, (2 Rev. St. 7th Ed. 981, § 2:) "Sec. 2. The term 'land,' as used in this chapter, ['Of the Assessment and Collection of Taxes,'] shall be construed to include the land itself above and under water; all buildings and other articles and struct

ures, substructures, and superstructures erected upon, under, or above, or affixed to, the same; * * * all surface, under-ground, or elevated railroads; all railroad structures, substructures, and superstructures, tracks, and the iron thereon; branches, switches, and other fixtures permitted or authorized to be made, laid, or placed in, upon, above, or under any public or private road, street, or grounds. * * The term real estate' and 'real property,' whenever they occur in this chapter, shall be construed as having the same meaning as the term land,' thus defined."

*

Argued before DANIELS and BARTLETT, JJ.

De Los McCurdy and B. W. Franklin, for appellant. George S. Coleman, for respondents.

DANIELS, J. The writ of certiorari was issued to review and correct the assessments of the relator's real estate and street railway, made in the year 1883. It was averred in support of the application for the writ that the valuation made by the commissioners for the assessment of the property exceeded that which they should have adopted; that the assessments were made at a higher proportionate value than other real estate or personal property on the same roll; that the personal property of taxable inhabitants had been intentionally omitted; and that the rule adopted for the assessment of real estate did not exceed 60 per cent. of its value, and that the relator's property was assessed at a higher valuation than this percentage. By the return of the commissioners the proceedings themselves appear to have been regularly conducted, as they were prescribed by subchapter 16 of chapter 410 of the Laws of 1882; and also conformably to the provisions of the Revised Statutes, so far as they remained applicable to the proceedings. The railway of the relator is commonly known as the "Belt Line," extending around a large portion of the city, and so much of it as was located within the several wards through which the railroad passed was separately assessed as the property of the relator within such ward. This railway, including its bed and superstructure, was "real estate," within the definition of that description of property contained in chapter 293 of the Laws of 1881; and that it was liable to assessment and taxation under the laws of the state as real estate had previously been held in People v. Cassity, 2 Lans. 294, affirmed 46 N. Y. 46, and People v. Commissioners, etc., 82 N. Y. 459. By the return of the commissioners to the writ, it appears that, after the assessments were made, the books containing them were open for examination and correction from the second Monday of January, 1883, until the first Monday of the following month of May, and that this fact was advertised according to law. The relator in its petition has stated the fact to be that during this period an application in writing, as that was provided for by subchapter 16, c. 410, Laws 1882, was made to the commissioners to correct the valuation of the petitioner's property. But this has been denied by the commissioners, who have returned that no application was made on behalf of the relator to have the assessed value of its property corrected; and it appears, further, that the assessments were made certainly at no greater valuation than the law prescribed and allowed that to be done.

A reference by consent was made to a referee to take evidence as to this and other assessments complained of by the relator. But no evidence was obtained under the order which will justify the conclusion that the commissioners proceeded erroneously in the confirmation or making of the assessments. The return also states the facts to be that the assessments were not made upon an overvaluation, or at a higher proportionate value than other real estate valued by the commissioners, and entered on their books. And in their return they denied the statement that the taxable inhabitants of the city had not been faithfully assessed for personal property for the year 1883, or to any greater extent than 15 per cent. of the value of such property, or that the

real property in the city had not been faithfully assessed for the year, or had not been assessed for more than 60 per cent. of its true assessable value, or that the assessment of the relator had been made at a higher proportionate value than other real or personal property on the same rolls. These denials by the commissioners were directly responsive to the statements made and contained in the petition for the writ, and are for that reason conclusive against the relator, inasmuch as neither denial has been overcome by proof taken under the order of reference. For the correction of assessments of real estate for the purposes of taxation, a summary and inexpensive proceeding before the assessors themselves was provided, both by the Revised Statutes and the act under which these assessments were made. 1 Rev. St. (6th Ea ) pp. 937, 938, §§ 18-21; chapter 410, Laws 1882, § 820. The relator omitted to avail itself of this remedy; and by reason of that omission, both under the preceding practice, as well as that provided for by chapter 269 of the Laws of 1880, it deprived itself of the right to question the legality of these assessments. People v. Commissioners, 99 N. Y. 254. The order was consequently right, and it should be affirmed, together with the usual costs and disbursements. All concur.

PEOPLE ex rel. CENTRAL PARK, N. & E. R. R. Co. v. COMMISSIONERS OF TAXES AND ASSESSMENTS.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. TAXATION-ASSESSMENT-DEDUCTION OF DEBTS-CORPORATIONS.

The funded and floating debts of a corporation which pays an annual dividend of 8 per cent., and whose stock is worth 130 per cent., need not be deducted from an assessed valuation of its capital stock which is less than the amount of such debts, no such deduction being provided for in Laws N. Y. 1857, c. 456, § 3, which governs such assessment. 1 Rev. St. (6th Ed.) pp. 935, 936, § 9, subd. 4, and section 10, providing for the deduction of debts in the assessment of personal property, do not apply.

2. SAME ASSESSED VALUE OF LAND.

Under Laws 1857, c. 456, § 3, providing for the deduction of the assessed value of the real estate of the corporation, no more than the assessed value need be deducted, though a greater valuation might have been placed upon it.

8. SAME-CORPORATE FRANCHISE.

In placing a valuation on capital stock, the value of the franchise of the corporation may be considered.

Appeal from special term, New York county.

Writ of certiorari to the commissioners of taxes and assessments of the city of New York, to review an assessment of the capital stock of the Central Park, North & East River Railroad Company, relator. Relator appeals from an order affirming the action of defendants, and dismissing the writ.

Argued before DANIELS and BARTLETT, JJ.

De Los McCurdy and B. W. Franklin, for appellant. George S. Coleman, for respondents.

DANIELS, J. The assessment complained of by this proceeding was made of the capital stock of the relator for the year 1883, amounting to the sum of $942,142. The objections stated in the petition were that the relator was not liable to be assessed on its capital stock for that year, and that the assessment was made without deducting the amount paid for real estate, and that it was at a higher proportionate valuation than other real or personal property on the same roll. The commissioners in their return denied the charges of irregularity or illegality in making the assessment, and stated the basis on which the assessment had taken place. The capital stock of the relator was stated to be the sum of $1,800,000, and that is conceded in the report of the company to be entirely correct. Upon this the commissioners originally made their assessment at the sum of $2,700,000. During the time prescribed for that purpose the relator presented its complaint to them, and therein objected

to the amount of this assessment. Upon a further consideration of the case, they concluded to and did reduce it to the sum of $1,696,500, placing in this manner a valuation on the relator's capital stock of 941 per cent. of its par value, which was greatly below the actual value of the stock. That was stated in the report of the relator at the sum of 130 per cent., yielding an annual dividend of 8 per cent. By this action it is accordingly evident that the commissioners were more liberal to the relator in their final conclusion than the law required them to be. The result was not erroneously reached, but was highly favorable to the relator. From this amount the commissioners then proceeded to and did deduct the real estate of the petitioner, amounting in value to the sum of $510,812; and this was conformable to the price paid for the real estate, as that was reported by the relator to the commissioners, subject only to the deduction of 37 cents. The commissioners then made a further deduction of $228,246 for the tracks of the relator. These were stated in the relator's report at the sum of $1,165,050, justifying, if it had been followed, both a larger assessment of the tracks, as real estate, and a larger deduction from the capital stock of the company than was allowed by commissioners. But no injustice was done to the relator by making the allowance for the tracks at these figures; for it appeared in the proceedings for the assessment of the real estate, which were substantially consolidated with this, that the tracks of the relator were assessed by the commissioners at no greater amount or value than this sum of $228,246. In both respects, therefore, injustice to the relator was carefully avoided, for the valuation of its capital stock was placed at a lower figure than the facts themselves, as they were conceded by the company, would justify, and the real estate was deducted from the reduced balance at the full amount for which it was assessed in the proceeding adopted and followed for that purpose; and the deduction of that valuation is all that has been directed by section 3, c. 456, Laws 1857. People v. Commissioners, 95 N. Y. 554. Besides this, the amount invested in the stocks of other corporations, taxed upon their capital, was also deducted, and that produced the balance of $942,142, for which the stock of the company was assessed. Evidence was taken before the referee appointed for that purpose, relating to the personal property, earnings, and valuation of the stock of the company. But this evidence was very general and indefinite, supplying no substantial criterion for the government of the commissioners in making their assessment; and it certainly did not overcome the effect of the statements made in the report verified by the treasurer on the 29th of March, 1883, stating the value of the stock to be 130 per cent., and the annual dividend 8 per cent. These were facts admitted by the defendant. And upon them, as well as the information which the commissioners otherwise acquired, they were supported in the conclusion which they adopted and followed, and would have been in placing a much higher valuation upon the stock than they did. In ascertaining the valuation of property for the purpose of taxation, much has been left by the law to the intelligence and judgment of the assessors themselves. And "they have a right to resort to all the tests and measures of value which men ordinarily adopt for business purposes, in estimating and measuring values of property. They may take into account the business of the corporation, its property, the value of its actual assets, the amount and nature of its present and contingent liabilities, the amount of its dividends, and the market value of its shares of stock in the hands of individuals. They may resort to any or all of these, as to them seems best, and they are not confined to one of them. They may take that test which they think will be most likely to give them the actual value of the stock, and they may disregard all the others." People v. Coleman, 107 N. Y. 541, 543, 14 N. E. Rep. 431. And in their estimate they are at liberty, not only to consider the property and liabilities of the company, but also the value of the franchise secured to the owner as a corporation. People v. Commissioners, 104 N. Y. 240, 10 N.

E. Rep. 437. From the evidence before them, as well as that taken under the order of reference, the commissioners were fully warranted in adopting the valuation which they did as the criterion for which the relator was liable to assessment upon its capital stock.

By the report which the company made to the commissioners it appeared that they were owing a funded debt, which, with interest, amounted to the sum of $1,220,325, and a floating debt amounting to $21,596.30. In behalf of the relator it has been urged that a deduction of these debts should have been made by the commissioners from the balance adopted by them. If that had been done, no residue would have remained upon which the relator would have been liable to taxation upon its capital. In the assessment of personal property for the purpose of taxation, the just debts owing by the owner have by the Revised Statutes been required to be deducted from its full value. 1 Rev. St. (6th Ed.) pp. 935, 936, § 9, subd. 4, and section 10. But the assessment of the personal property or capital of a corporation, not invested in real estate, is not made under the provisions of this statute. That was changed as to corporations by chapter 456 of the Laws of 1857. By section 3 of that act the capital stock of the corporation is required to be assessed at its actual value, and taxed in the same manner as other personal and real estate of the county, after deducting therefrom such part as may have been excepted in the assessment roll, or has been exempted by law, together with its surplus profits or reserved funds exceeding 10 per cent. of its capital, and the assessed value of its real estate, together with the shares of stock owned by it in other corporations, taxed upon their capital stock under the laws of this state. Those are the only exceptions and deductions which the statute has provided for, or permitted to be made; and this indebtedness, not being within the deductions in this manner provided for, could not be used by way of absorbing the balance adopted by the commissioners, as the amount for which the relator was assessable. In the case of People v. Commissioners, 31 Hun, 32, the amount of indebtedness was proved as a fact to establish the conclusion that the stock of the company was of no value. And that has been sanctioned by People v. Asten, 100 N. Y. 597, 3 N. E. Rep. 788. But making that use of the indebtedness would not change the liability of the relator for the amount of this assessment. For the facts still remained, proven by its own admissions, that the dividend made by it was 8 per cent., and the stock was of the value of 130 per cent. No substantial ground, accordingly, was presented in the case on which the relator was entitled to any further deductions than those allowed by the commissioners. The assertion that the assessment was made at a higher proportionate valuation than other real or personal property on the same rolls, or that it was illegal, erroneous, or void for any of the reasons or causes set forth in the petition for the writ, have been denied. And no proof has been presented in the case which would entitle the relator to any advantage under these charges contained in its petition. The case of People v Carter, 109 N. Y. 576, 17 N. E. Rep. 222, has prescribed what may be done under the allegation that the valuation is proportionately higher than other property in the same roll. But this authority affords no basis for any interference by the court with this assessment. The order should be affirmed, together with the usual costs and disbursements. All concur.

PEOPLE ex rel. CENTRAL PARK, N. & E. R. R. Co. v. COMMISSIONERS OF TAXES AND ASSESSMENTS.

(Supreme Court, General Term, First Department. January 28, 1889.) TAXATION-ASSESSMENT-CORPORATE STOCK.

The capital stock of a street-railroad company which pays an annual dividend of 8 per cent., and whose stock was reported by it the year before to be worth 130 per cent., and for whose stock larger offers are reported in "The Stockholder," is prop