People agt. Commissioners of Taxes.

2. The capital stock, actually paid in and secured to be paid in, excepting therefrom the sums paid for real estate and the amount of such capital stock held by the state and by any incorporated literary or charitable institution; and

3. The town or ward in which the principal office of the company is situated, or its business is carried on, or in which it is liable to be taxed.

§ 7. The assessors shall enter in their assessment rolls as follows:

1. In the first column, the name of each incorporated company liable to taxation, and, under its name, shall specify the amount of its capital stock paid in; the amount paid by such company for real estate then belonging to it, wherever situated; the amount of its surplus profits or reserved funds, exceeding ten per cent. of its capital after deducting therefrom said amount of said real estate; and, the amount of its stock (if any) belonging to the state and to incorporated literary or charitable institutions.

2. In the second column, the quantity of real estate owned by such company within their town or ward; and in the third column, the actual value thereof, estimated as in other cases.

3. In the fourth column, the amount of capital stock of every such company paid in, and secured to be paid in, and of all such surplus profits or reserved funds as aforesaid, after deducting the sums paid out for real estate then belonging to it, and the amount of stock (if any) belonging to the state and to incorporated literary and charitable institutions.

§ 10. "The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent. of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are tax

People agt. Commissioners of Taxes.

able upon their capital stock under the laws of this state, shall be assessed at its actual value and taxed in the same manner as other personal and real estate of the county."

Under these statutory provisions, the assessment in this case has been made on said balance of the capital stock of the relator, and, as it appears to me, in exact accordance with these provisions. There is no question here of surplus profits or reserved funds, or as to the actual value of the stock, (whatever may be the meaning of that phrase as used in section 10, above referred to,) neither does it appear that any part of said stock was held by the state, or by any incorporated literary or charitable institution, or was excepted in the assessment roll, or was by law exempted from taxation.

But the relator insists that a deduction should have been made, not of any particular part or shares of the stock, as being for any cause exempt by law from taxation, but of the sum of $103,000 from the aggregate amount of the whole capital stock not invested in real estate, for the reason that such an amount ($103,000) of the moneys paid in for shares in said capital had been by the bank invested in stocks of the United States, and that such United States stocks are not subject to taxation by state authority.

Under the statutes above referred to, as I understand them, taxes are assessed upon the amount of the capital stock of a corporation ascertained in the manner prescribed, and not upon any property purchased or otherwise obtained by the corporation, or in which such capital or any part thereof may be invested-excepting only the real estate held by the company, which is subject to special rules of taxation, and must be assessed at the place where situated, whether in this state or elsewhere; and it is to be observed that the statute neither requires or authorizes the insertion in any statement made under section 3, above referred to, of an account or statement of the use made by a corporation of any part of its capital or other property, excepting

People agt. Commissioners of Taxes.

only the part which has been used in the purchase of real estate, nor any specification of the personal property held by such corporation.

In my opinion these statutes clearly require that every moneyed or stock corporation shall be assessed for and pay taxes upon the whole amount of the balance of its capital stock paid in and remaining after deducting the shares of stock excepted or exempt as above mentioned, notwithstanding a portion or even the whole of such balance may be invested in stocks of the United States held by such corporation.

And this conclusion in my judgment, does not conflict with the decision in the case of the British Commercial Life Ins. Co. agt. Commissioners of Taxes, (28 Barb., 318.) That life insurance company was a foreign corporation, using a portion of its property in carrying on business in this state, and under the laws of the state, liable to taxation therefor. It stood in the same position as a non-resident natural person, and the assessment was on the property held in this state, and not upon any shares or portion of the capital stock of the company under its charter.

Neither, as I understand them, are the definitions of terms “capital stock," or "capital," given in the opinions in the case of the Mutual Ins. Co. of Buffalo agt. Supervisors of Erie, (4 Com., 548,) in any respect inconsistent with this conclusion.

But it is urged on behalf of the relator, that the said statutes, if this be their true construction, are unconstitutional, in so far as they provide for or authorize taxation by state authority of any part of the capital stock of the corporation which is invested in stocks of the United States. I cannot assent to that proposition. The state of New York has, by its laws, created or authorized the formation of this commonwealth bank and other like corporations, granting to them certain powers and privileges, and has

People agt. Commissioners of Taxes.

also provided by law for the taxation of the capital stock of every such corporation.

As soon as the capital stock of any such corporation is paid in, it becomes as stock, the subject of, and liable to, taxation; and as I view the law, it must, during the continuance of the corporation, remain so liable to taxation as stock irrespective of the property in which the money paid for the stock may be invested, or any use that may be made of such money by the corporation, and if any part of the money paid in for its stock shall at any time be invested in stocks of the United States, such investment cannot affect the right of taxation, for the reason that the assessment of taxes is not upon the stocks of the United States or other property owned or held by the corporation, excepting only its real estate, but continues to be as it was before such investment was made, an assessment on the capital stock of the company, created under the laws of the state, and thereby expressly made the subject of taxation. The corporation which accepts and enjoys the privileges granted, must take them cum onere.

And, in my opinion, there is no foundation for the suggestion now made, that the decision by the court below is an evasion of the admitted rule of law, that United States stocks are not liable to taxation by state authority. It is not in form merely, but in fact and in principle, that this assessment of taxes is upon the capital stock of the relator, and not upon the property in which the money paid in for that capital is invested; which property may be and doubtless is changing from day to day. But to permit the relator to escape taxation upon so large a portion of its capital, because it has seen fit to invest such portion in stocks of the United States, would in my judgment be an evasion of the law of the state, which created the corporation, and made it liable to taxation on the amount of its capital.

The order made at special term should be affirmed, with costs.

Jones agt. Butler.

SUPREME COURT.

ELIZABETH M. JONES, and others agt. THOMAS C. BUTLER, trustee, &c., and others.

An objection to the validity of a marriage settlement, on the ground that the partics to it were infants, can only be taken by the parties themselves. It is not void, but voidable only, at the option of the infants on arriving at age.

Much less can a trustee, acting under the trust created by such a settlement raise such an objection.

Where a conveyance was made to a trustee of certain real estate which recited that the trustee had determined to invest $5,000 of the trust property in such lands, and which conveyed the land in trust to and for the purposes of the trust, Quere? Whether the trustee can relieve himself from such express trust, by showing the consideration for the purchase was never paid out of the estate.

It is a proper case for an accounting, where the action is brought for that purpose, on the ground of a misapplication of the trust property.

Where the facts appear in the complaint the court is to give such relief as the parties are entitled to, whether asked for or not in the prayer of the complaint.

New York Special Term, January, 1860.

INGRAHAM, Justice. This action is brought against a trustee to obtain an account and to have that trustee changed on the ground of a misapplication of the trust property.

The trust arose under a marriage settlement made in 1813; at the time of its execution, both of the parties to it were under age. The defendant Butler was appointed trustee, in the place of the original trustee, within one or two years thereafter.

In 1816, a conveyance was made to the trustee of lots in Broome street, which recited that the trustee had determined to invest $5,000 of the trust property in these lots, and which conveyed the land in trust to and for the purposes of the trust.

Since that time the wife has died and the plaintiffs claim the property under the marriage settlement and the title deeds.