and 136 New York State Reporter

2. SAME CAPITAL EMPLOYED WITHIN STATE-CREDITS EVIDENCES OF INDEBTEDNESS.

Where a foreign banking corporation, maintaining its principal office in the state and branches and agencies in other states, carries on the business of selling its own drafts on its own branches and agencies, which in turn draw upon the principal office for reimbursement and also to pay for such drafts as have been sold, thereby becoming indebted to the main office, which uses such indebtedness for the payment of any further drafts that may be drawn and sold by it, such credits and evidences of indebtedness were taxable as capital employed and invested within the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45. Taxation, § 290.] 3. SAME-EXEMPTIONS-AGENCY OF INVESTMENT OF MONEY WITHIN STATE.

Moneys, credits, and evidences of indebtedness, employed and invested within the state by a foreign banking corporation doing business therein, were not exempt from taxation, under subdivision 13, § 4. of the tax law (Laws 1896, p. 799, c. 908), exempting moneys of a nonresident under the control or in the possession, of his agent in the state, when transmitted to such agent for investment or otherwise, because they were not in the hands of an agent, but in the corporation's own hands, and, further because they were not sent to the corporation for collection, but belonged to it, and were needed and used in its business.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 350.]

Appeal from Special Term, New York County.

Certiorari by the people of the state of New York, on the relation of the International Banking Corporation, against Frank Raymond and others, as the commissioners of taxes and assessments of the city of New York, to review a certain tax assessment. From an order dismissing the writ (102 N. Y. Supp. 84), relator appeals. Affirmed. Argued before PATTERSON, P. J., and MCLAUGHLIN, INGRAHAM, CLARKE, and HOUGHTON, JJ.

David Rumsey, for appellant.

Curtis A. Peters, for respondents.

HOUGHTON, J. The relator is a banking corporation organized under the laws of the state of Connecticut, where it maintains a statutory office. It has a place of business at No. 60 Wall street, in the city of New York, with an office staff of 50 or more_persons. It maintains branches in the cities of Washington and San Francisco and at many of the commercial centers of foreign countries. Its business is the purchasing and selling of foreign bills of exchange to travelers and for commercial purposes, and the paying of such drafts as may be drawn on it at the city of New York by its various branches and agents, and the collecting of such as may be transmitted by them to it for that purpose, with an occasional loaning temporarily of surplus moneys. The average amount of moneys on hand does not appear, but at one period of the year for which the tax was levied the sum was $3,000,000. The relator has no certificate permitting it to do business in this state, but it has been conducting its business substantially as it now does since 1902, and all of its commercial affairs are managed by its directors and officers at the New York office. After a hearing the respondent commissioners determined that the relator was employing capital to the extent of at least $69,500 in its business in this state, and fixed assessment against it at that sum. A

writ of certiorari was obtained, which was dismissed, and from the order of dismissal this appeal is taken.

The relator urges that it is not doing business in this state, within the meaning of section 7 of the tax law (Laws 1896, p. 800, c. 908), and that, if it is, the capital which is invested in such business is not within this state nor under its jurisdiction, but must be deemed to be held in the state of Connecticut, the legal situs of the corporation, and, further, that whatever capital is employed here is exempt from taxation under subdivision 13 of section 4 of the tax law. We think none of these contentions can be upheld. Manifestly the relator is doing business within this state. It maintains here an office, and has for some years. Its business affairs and branches and agencies are managed by and from that office, which is one of magnitude; and apparently it is doing the business that any international banking house would do with extensive and assured connections. Notwithstanding the corporation is a foreign one, and hence a nonresident, to the extent of the capital which is invested in its business conducted in this state, it is taxable under the express provisions of section 7 of the tax law.

But the relator insists that the $123,000, which was the basis of the assessment, less the deduction for debts, consisted wholly, except the $6,000 of bank deposit, of bills, notes, and drafts receivable, which were not investments in business, but were simply debts due to it, and in no sense, an investment in business. It is evident that the relator must employ some capital to carry on the business which it does. The business which it carries on is the selling of its own drafts on its own branches and agents. Not only to reimburse themselves do these branches and agents draw upon the relator, but they draw upon it to pay such drafts as they have sold. In this way it may be assumed such branches and agents become indebted to the main office in the city of New York. In turn this indebtedness is used for the payment of such further drafts as may be drawn and sold by the home office. These credits and evidences of indebtedness, therefore, constitute relator's stock in trade. They were physically in the city of New York, and held here, and were not in transit to the state of Connecticut, and we think such use of moneys and credits is the employment and investment of capital within the state, which subjects it to taxation.

A foreign corporation doing business within this state is taxable upon credits and bills receivable due the corporation from such business. People ex rel. Burke v. Wells, 184 N. Y. 275, 77 N. E. 19; People ex rel. Yellow Pine Co. v. Barker, 23 App. Div. 524, 48 N. Y. Supp. 553, affirmed 155 N. Y. 665, 49 N. E. 1103, on opinion below; People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159, 51 N. E. 1043. The case of People ex rel. N. E. Loan Co. v. Roberts, 25 App. Div. 16, 49 N. Y. Supp. 10, affirmed 156 N. Y. 688, 50 N. E. 1120, on opinion below, although arising under the franchise tax law is instructive and closely resembles the case under consideration. The relator in that case was a foreign corporation whose business consisted of loaning money on bonds and motgages upon property in Western

and 136 New York State Reporter

states. It had a place of business in the state of New York and kept on hand a certain number of Western securities, which were sold and replenished in the course of its business, the proceeds of which sales were temporarily deposited and subsequently sent for reinvestment. It was held that, to the extent of the moneys temporarily on hand and the securities through which it transacted its business, it employed capital within this state, and was, therefore, subject to a license tax. Finally, it is urged that, even if these demands and evidences of debt can be deemed within the state, they were sent here for collection, or are moneys of a nonresident under the control or in the possession of his agent, transmitted here for the purpose of investment or otherwise, and that they are exempt from taxation by the provisions of subdivision 13 of section 4 of the tax law, and that the decision in People ex rel. Bank of Montreal v. Commissioners, 59 N. Y. 40, compels us to so hold. One answer to this contention is that they are not in the hands of an agent of the relator, but are held by the relator itself. Another answer is that they have not been transmitted here by the relator for collection, but have been sent here to the relator, because they belong to it, and because it desires to use them here in its business. The case of People ex rel. Bank of Montreal v. Commissioners, supra, apparently turned upon the fact that the foreign corporation was employing an agent to transact its business in this state, and was not itself doing business here. In construing Laws 1855, p. 44, c. 37, in connection with Laws 1851, p. 722, c. 371, § 2, which two laws contained substantially the provisions found in section 7 and subdivision 13 of section 4 of the present tax law, Judge Rapalle, in the course of his opinion, says:

"As the law stood at the time of the passage of the act of 1855, there was no authority for taxing a nonresident in respect to his personal property. If such property was in the hands of a resident trustee or agent, the agent or trustee, and no other person, could be assessed therefor. But, if the nonresident owner controlled and managed his own business in New York without the intervention of a resident agent, there was no method provided for taxing his assets here. Hence the peculiar language of the act of 1855 which subjects to assessment and taxation nonresident persons, etc., doing business in this state as principals or partners, special or otherwise."

It was finally concluded that so long as the foreign principal retained the control of its funds, and the transactions of the agent in this state were confined to the mere loaning of the money in single investment or in many, such act was not the carrying on of business, and that no tax could be imposed. This strict interpretation of the statute does not seem to have found great favor with the courts; for, so far as we have been able to discover, the case has never been cited in any of the numerous tax decisions, except in People ex rel. N. E. Loan Co. v. Roberts, supra, where it was held not controlling, as it manifestly was not. Whether the decision is to be deemed a correct interpretation of the statute or not, it does not apply to the present case; for such funds as the relator employed in this state were not in the hands of an agent, but of itself.

Our conclusion is that the relator was properly assessed, and that the writ was properly dismissed, and that the order should be affirmed, with costs. All concur.

(116 App. Div. 772)

STECKER v. WEAVER COAL & COKE CO.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.)

1. SALES-BREACH OF CONTRACT-DAMAGES.

In an action for failure to deliver coal within the contract time, the plaintiff, a retail dealer, is not entitled to recover the difference between the price paid at wholesale and the retail price at the time and place for delivery under the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1197, 1198.]

2. SAME.

Where coal was sold at wholesale, the measure of damages for failure to deliver it within the contract time was the difference between the purchase price and the wholesale market price on the day it should have arrived.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1197, 1198.]

3. DAMAGES-BREACH OF CONTRACT-LOSS OF PROFITS-PLEADING-SPECIAL DAMAGES.

Profit which a purchaser of coal might have made by retail sales cannot be availed of as an element of damages, unless pleaded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 413.]

Appeal from Trial Term, Westchester County.

Action by Charles H. Stecker against the Weaver Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted, on condition.

Action for damages for failure to deliver 308 long tons of coal at Mt. Vernon, Westchester county, N. Y., within the contract time.

The plaintiff purchased 308 long tons of anthracite coal of the defendant on January 13th, 1903, at $11.15 a long ton, to be delivered at a specified dock at Mt. Vernon within the next week.

The defendant claimed that the contract was made under a representation of the plaintiff that Eastchester creek, through which the coal would have to go to Mt. Vernon, was 9 feet deep. The verdict of the jury negatived this. A barge was loaded with the coal by the defendant at Port Liberty, N. J. With the load it drew 8 feet of water. Eastchester creek was only about 71⁄2 feet deep. The towing time to Mt. Vernon is 6 to 8 hours.

After the barge had been loaded the defendant notified the plaintiff that it could not go through Eastchester creek for lack of sufficient depth of water, and that its contract would therefore be fulfilled according to maritime law by delivering at the nearest accessible port, and it towed the barge to City Island as such port, and left it. The plaintiff afterwards had it towed to New Rochelle, where 81 tons were discharged to lessen the draft. and thence through Eastchester creek to Mt. Vernon, arriving on February 6th, which was more than two weeks late.

The defendant claimed that the plaintiff paid for the coal after such notice of lack of water was given, and accepted delivery at City Island. The plaintiff claimed that he had already paid for the coal, and took charge of it only to minimize his damage, and without waiving the defendant's breach of the contract. The jury found for the plaintiff on this issue.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and MILLER, JJ.

Joseph A. Arnold for appellant.

Woodson R. Oglesby, for respondent.

and 136 New York State Reporter

GAYNOR, J. The learned trial judge charged the jury that if they found for the plaintiff his measure of damage was the profit at which he could have sold the coal at retail at Mt. Vernon if it had arrived in contract time, viz., $1,200, plus the difference between the purchase price and the sum he received for the coal at retail, viz., $1,400, which would make a total of $2,800, which with interest would be $3,200. These were the figures given by the learned trial judge to the jury. They were within the evidence and were not objected to. The jury followed them and rendered a verdict for $3,200.

It will be seen that the learned trial judge made a mistake of $200 in totalling. This with interest from January 21st, 1903, to the trial day has to come off. The prospective or possible profit of $1,200 with interest has also to come off, for the general rule is that such profits are not allowable as an element of damage (Saxe v. Penokee Lumber Co., 159 N. Y. 371, 54 N. E. 14) and this case is within such rule. Moreover, the coal was finally received and sold at retail, so that the plaintiff got the retail profit over the wholesale market price prevailing on the arrival of the coal. A recovery of the difference between the price he had paid and such subsequent wholesale market price would therefore make him whole, i. e., it would give him the amount of the fall in wholesale price, which he had lost by the failure to deliver in contract time, and by selling at retail he had already received his retail profit. The rule of damage given to the jury in respect of the other item of $1,400, i. e., the difference between the purchase price and the sum realized by selling the coal at retail to the best advantage after its arrival, was erroneous, but the error is not open to the defendant's objection for it is in its favor, it lessens the damage. The true rule was the difference between the purchase price which had been paid by the plaintiff and the wholesale market price on the day the coal should have arrived. This latter was necessarily (and as the evidence shows) less. than the retail price then prevailing-and the coal was all sold at retail without delay. The wholesale market was the harbor of New York, and the towing time from there to Mt. Vernon only a few hours.

It was not proven that the plaintiff had sold the coal in advance at retail for $15 a short ton, or any other price, for delivery at the time it was due under his contract of purchase of the defendant. Nor was the defendant informed that the purchase of it was being made to fulfill such advance retail sales, which was essential in order to make them the criterion of damage. Nor does the complaint plead such special damage, which was essential. Parsons v. Sutton, 66 N. Y. 92; Sprout v. Newton, 48 Hun, 209.

The judgment should be reversed unless the plaintiff consent to reduce it by the sums of $200 and $1,200 with interest from January 21st, 1903, to the trial day, and a proportionate part of the extra allowAll concur.

ance.