(38 Misc. Rep. 204.) and 111 New York State Reporter PEOPLE ex rel. NEW YORK CENT. & H. R. R. CO. v. FEITNER et al., Tax Com'rs. (Supreme Court, Special Term, New York County. June, 1902.) 1. RAILROADS-TAXATION-EVIDENCE OF VALUE. In determining the actual value of the taxable property of a leased railroad for purposes of assessment on its capital stock under Tax Law, § 12, where all the tangible property is within the jurisdiction of the commissioners, and assessed by them, they may base their finding on the rental paid by the lessee. 2 SAME-LEASED ROAD. Where lessee had a franchise to operate a railroad in the state of New York, the court will not assume that the rent under the lease of the road included the value of the lessee's franchise for purposes of taxation. & CERTIORAri-Return. The allegations of a return to a writ of certiorari to review an assessment must, for the purposes thereof, be taken as true. Certiorari by the people, on the relation of the New York Central & Hudson River Railroad Company and the Spuyten Duyvi & Port Morris Railroad Company, against Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, to review an assessment on the capital stock of the latter railroad company. Writ dismissed. Ira A. Place, for relators. George L. Rives, Corp. Counsel (David Rumsey, of counsel), for respondents. STECKLER, J. In this procceding the relators seek to review an assessment upon the capital stock of the relator the Spuyten Duyvil & Port Morris Railroad Company for the year 1901. The said railroad company is a domestic corporation, and on the second Monday of January, 1901, its entire property consisted of a strip of railroad, together with the superstructure of railroad tracks and ties, along the northerly side of the Harlem river, and certain buildings suitable for the operation of the road. The company had no surplus. The property is in the city of New York, within the jurisdiction of the defendants for taxation purposes. It is used, under a lease, to connect two sections of the lines of the New York Central & Hudson River Railroad, enabling that company to run its trains into the borough of Manhattan; and its assessed value for 1901 was $1,121,600. In making an assessment required by the statute upon capital stock (Tax Law, § 12) the proper method to pursue is to first value all the assets of every kind, including real and personal property, of the corporation, and then to make the necessary deductions, including a deduction of the assessed, as distinguished from the actual, value of the real property. In the case of corporations it may happen that an undervaluation in the assessment of the real estate as such will be corrected in its valuation as part of the capital, and so the undervaluation may be remedied, and the whole property be subjected to taxation at its real value. People v. Barker, 144 N. Y. 94, 39 N. E. 13; People v. Barker, 31 App. Div. 315, 51 N. Y. Supp. 1102, 53 N. Y. Supp. 1111, affirmed in 158 N. Y. 709, 53 N. E. 1130, and in 179 U. S. 279, 21 Sup. Ct. 124, 45 L. Ed. 194. The claim of the relators is that the relator the Spuyten Duyvil & Port Morris Railroad Company has no personal property of any kind, or surplus profits or reserve funds, but only the real property constituting its railroad; that all the proceeds of its capital stock are invested in said real property; and that the actual value of the realty is $989,000. In their return to the writ the defendants state that the railroad was so situated as to necessitate a different method of valuation from that adopted in the case of an ordinary steam railroad only partly within the tax district; that neither the use nor the situation of the railroad was that of an ordinary steam railroad, and that neither the cost of its construction nor reproduction would show its actual market value; that its value, $989,000,-as stated in the application for the writ, appeared to be measured by the cost of the road more than 30 years ago; that under the lease to the New York Central & Hudson River Railroad Company the lessee undertook to pay and paid an annual rental for the use of the property amounting to 8 per cent. of the par capital of the lessor, $989,000, besides all taxes and repairs, and that it thus appeared that the earning power of the railroad amounted to 8 per cent. net annually upon the original cost; that, taking this earning power into consideration, the market value of the capital stock on the second Monday of January, 1901, was $1,483,500; and, deducting from this sum the assessed value of all the corporation's real estate, viz., $1,121,600, the amount for which the company's capital stock was taxable for 1901 was $361,900. In a case of this kind the court is not to place itself in the position of an assessor, and review his decision upon questions of value or appraisement, where the officer proceeded upon information or evidence tending to support his decision. The court generally will not look into questions of fact as to the amount or value of the personal estate of a corporation or individual. These matters are for the judgment of the assessors, and their decisions will ordinarily be sustained. People v. Barker, 139 N. Y. 55, 60, 34 N. E. 722. The question to be decided, therefore, is whether the defendants adopted a proper method in determining the actual value of the lessor's real property. It is contended that the method adopted by defendants violates the rule laid down by the court of appeals in People v. Clapp, 152 N. Y. 490, 46 N. E. 842, 39 L. R. A. 237. In that case, wherein a question of local taxation of real estate, not taxation of its capital stock, was involved, the assessors based their valuation upon the income or earning power of an entire system of railroads of which the portion of relator's railroad within their jurisdiction formed a part; and the court held that such basis was erroneous, and that the cost to procure the land, construct the roadbed, put down the ties and rails, and erect the buildings and other structures, all new, was a just and reasonable rule of valuation. In this proceeding all the tangible property of the Spuyten Duyvil & Port Morris Railroad was within the defendants' jurisdiction, and assessed and 111 New York State Reporter by them, and its earning power or the rental paid for the property by the lessee was considered merely for the purpose of determining its actual value. In determining the "actual value" of the property (Tax Law, § 12),—that is, "the sum for which said property under ordinary circumstances would sell" (Greater N. Y. Charter, § 889; People v. Barker, 144 N. Y. 94, 39 N. E. 17),-it seems to have been proper, not capricious, arbitrary, or fanciful, for the defendants to base their finding of value upon the rental paid by the lessee, because the rent of property is evidence of the amount for which it will sell. Atlantic & St. L. R. Co. v. State, 60 N. H. 133; People v. Kalbfleisch, 25 App. Div. 432, 49 N. Y. Supp. 546. The relators further claim that in fixing the amount of rental not only the tangible property of the Spuyten Duyvil Company, but its franchises, were taken into consideration by the parties to the lease. But the petition and return show that it was the real estate, not the franchises, of the lessor, that was leased. The petition avers "that on the said second Monday of January, 1901, the total gross assets of every kind and character owned and held by said the Spuyten Duyvil & Port Morris Railroad Company were real estate of the actual value of $989,000," and the return states that the property assessed was the real property rented. The statement must be taken as true. People v. Feitner, 65 App. Div. 224, 72 N. Y. Supp. 641. Moreover, the Spuyten Duyvil Company is still a corporation, and still has its franchise. The statute (Laws 1839, c. 218) authorizes any railroad corporation to contract with any other railroad corporation for the use of their respective roads. See Railroad Law, § 78. The lessee, with its franchise to operate a railroad in the state of New York, had ample power to operate any property which it might acquire therein as a railroad, and to justify such operation it was only necessary to acquire the tangible property upon which the railroad should be operated. So that it was unnecessary for the lessee to acquire the lessor's franchise to operate its road, and the lessor's contention that its franchise was leased, or was an element in the stipulated rental, is not sustainable. See, also, opinion, Earl, Referee, Special Franchise Tax Cases, p. 44, Pamphlet. Upon the whole case the relators have failed to show that they are aggrieved by the assessment, and the writ must therefore be dismissed, with costs. Writ dismissed, with costs. (38 Misc. Rep. 176.) NICHOLS v. PARK. (Supreme Court, Special Term, New York County. June, 1902.) RIGHT OF DOWER-ACTION TO RECOVER. A complaint alleged that plaintiff's husband in 1872, in order to defeat her inchoate right of dower, contracted in writing with one C. to purchase from him certain real property described, and that he took the title in the name of his brother, though he paid the consideration himself; that plaintiff obtained a divorce, whereupon her husband took the record title, and occupied the property until his death, in 1902, and shortly before that time conveyed the property to the defendant. Held to state a cause of action for an inchoate right of dower in said property. Action by Georgiana Nichols against William G. Park. Demurrer to complaint overruled. Alexander Thain, for plaintiff. William H. Stockwell, for defendant. FITZGERALD, J. The plaintiff and William B. Nichols were lawfully married about October 20, 1857. In February, 1872, William B. Nichols, the husband, contracted in writing to purchase from James E. Coburn the premises No. 16 East Seventy-Fourth street, in the city of New York; but for the purpose, as plaintiff claims, of preventing her inchoate right of dower from attaching, title in the first instance was taken in the name of the vendee's brother, John J. Nichols, notwithstanding that the full consideration was paid by the husband, who immediately entered into possession, and continued to occupy the premises from that time until his death, in January, 1902,-a period of 30 years. On or about September 3, 1877, a final judgment of divorce was entered in the supreme court of the state of Connecticut, for the county of Fairfield, in favor of the plaintiff and against William B. Nichols. About August 25, 1886, William B. Nichols took record title to the property, and in May, 1901, conveyed the same to Mary Ida Nichols, who some months thereafter transferred the premises to the defendant. These facts. are set forth in the complaint, and defendant demurs to that pleading on the ground that it does not state facts sufficient to constitute a cause of action. In support of the demurrer, defendant cites the case of Phelps v. Phelps, 143 N. Y. 197, 38 N. E. 280, 25 L. R. A. 625, and claims that the precise question raised in the case at bar was decided against the plaintiff in that action. I have carefully considered the reasoning of the case relied upon, and am convinced that the facts in the pending action are capable of being distinguished in marked degree from the facts then before the court, and to which the principles therein enunciated were applied. In Phelps v. Phelps, supra, the conveyance was directly to a dummy, and, as the court said at page 200, 143 N. Y., page 281, 38 N. E., and 25 L. R. A. 625, the lands "were never conveyed, nor agreed to be conveyed, to him" (the husband), and again at page 201, 143 N. Y., page 281, 38 N. E., and 25 L. R. A. 625: "But unless he was actually seised, or unless he had such a seisin at law as would entitle him to its possession, it is difficult to see how his wife could claim that she ever gained any dower interest." By paragraph 3 of the complaint herein it is averred that "William B. Nichols contracted in writing with one James E. Coburn to purchase from said Coburn" the premises in question. This statement would fairly imply that upon payment of the agreed price the vendee might compel a specific performance by the vendor, and this was clearly such a seisin, in law, as would entitle him to its possession. "But if at the time of the transfer the husband has the right to be invested with the legal title, and is in a position to compel the conveyance of such title to himself, the right of dower attaches." Clybourn v. Railway Co., 4 Ill. App. 463. The husband, being in a position to possess himself of the property, sought, by the device of taking the title in another and 111 New York State Reporter name, to deprive his wife of her rights. The case is one which calls for the application of the maxim that "equity looks upon that as done which ought to be done." Demurrer overruled, with leave to defendant to answer within 20 days upon payment of costs. Demurrer overruled, with leave to answer within 20 days upon payment of costs. (73 App. Div. 518.) CONREY V. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. June 20, 1902.) VERDICT-INDEFINITENESS-MISTRIAL. A jury rendered a sealed verdict as follows: "The jury say that they find a verdict for defendant, with recommendation to the court to award plaintiff $300 as compensation for her losses." Held that, as the intention of the jury could not be ascertained from the verdict, there was a mis trial. Appeal from trial term, New York county. Action by Elizabeth Conrey against the Metropolitan Street Railway Company. From an order declaring a mistrial, and restoring the case to the day calendar, defendant appeals. Affirmed. Argued before VAN BRÚNT, P. J., and MCLAUGHLIN, PATTERSON, and LAUGHLIN, JJ. Charles F. Brown, for appellant. LAUGHLIN, J. This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. After the case had been submitted to the jury, the court ordered a sealed verdict. The jury agreed upon their verdict, reduced it to writing upon a blank submitted to them for that purpose, sealed and delivered it to their foreman, and separated for the night. The jury appeared at the opening of court the next morning, and, through their foreman, presented their verdict, which, omitting the title of the action and signatures of the jurors, was as follows: "The jury say that they find a verdict for defendant, with recommendation to the court to award plaintiff $300 as compensation for her losses." The court declined to receive this paper as a verdict, whereupon defendant's counsel requested the court to direct the clerk to enter it as a verdict for the defendant. This motion was denied. The plaintiff's counsel moved the court for an order declaring the trial a mistrial, and restoring the case to the day calendar. The court announced that it was impossible to determine what the jury intended by the verdict as reported, and that, inasmuch as the jurors had separated, they should be discharged. The jury having been discharged, it is manifest that there is no means now available by which their intention can be ascertained, except from the paper which they presented to the court. We have no doubt that the trial court would have been authorized to send the jury back to correct their verdict, and put it in definite, legal form, notwithstanding the fact that they had separated overnight (Prof. |