FIRST DEPARTMENT, NOVEMBER TERM, 1892. 19th Ward-1st ave., E. 41st st., E. 42d st.; Nos. 1 to 20; 31 to 50..... 350,000 00 21st Ward 1st ave., E. 39th st. and 40th st.; Nos. 4956 to 4981..... 200,000 00 22d Ward-S. E. cor. 11th ave. and 59th st.; Nos. 61 to 64. 22d Ward - Bet. 10th and 11th aves., 58th to 59th sts.; Nos. 5 to 20; 45 to 60....... Amounts invested in the stocks of other corporations 205,000 00 $1,484,000 00 (If the stock of the company is worth less than par, state the actual value, and give the facts under oath which will justify such estimate of its value.) The market-value of stock, 1890.... The market-value of stock, 1891. $125 00 115 00 The commissioners started with a valuation of $4,000,000, or the par capital of the relator, to which was originally added the twelve per cent, which, however, we need not consider because it has since been stricken out; and, therefore, we have, as a starting point in determining the question now presented to us, $4,000,000, an amount equal to the par value of the capital of the relator. As shown above, the total gross assets were $6,740,666.52, from which, if we deduct the indebtedness as claimed by the relator, which aggregated $2,579,244, there still remains an amount in excess of $4,000,000, with which the commissioners had a right to start, and from which they were to deduct the amounts exempted by the statute. This they did by deducting the assessed value of the real estate. But it is insisted- and this is the ground of the grievance claimed that, instead of the assessed value of the real estate, the actual value thereof should have been deducted. Or, in other words, that if, for the purpose of fixing the value of the capital stock, we have regard to the total gross assets of the corporation, here stated to have been six millions and over, an examination by FIRST DEPARTMENT, NOVEMBER TERM, 1892. the commissioners would have disclosed the facts which are now presented to the court, namely, that five millions and over of these gross assets represented money invested in real estate, lands, buildings, mains, etc., separately taxed. We think that the error into which the learned counsel for the relator has fallen is in assuming that, for the purpose of determining the value of the capital, only personal property is to be considered. As held in People ex rel. Butchers' Hide and Melting Company v. Asten (100 N. Y., 597): "It is not a controlling fact in the assessment of the capital stock of a corporation that the whole capital was originally invested in real estate. It is the duty of the assessors to ascertain the present value of the stock, and from this to deduct the assessed value of the real estate and such other items as are specified." This case and that of People ex rel. Twenty-third Street Railway Company v. Commissioners of Taxes (95 N. Y., 554), we think, are authority for the view that for the purpose of ascertaining the value of the capital of a corporation it is competent for the commissioners to take the quantity or actual value of the real estate, together with the other property of the corporation, and after the value thereof is found, they are not required to deduct therefrom the actual value of the real estate which has been included in estimating the value of the capital, the exemption of the real estate being only to the extent that it has been assessed. Therefore, if we assume here that all the property of the relator was real estate, that its gross assets consisted entirely of real estate, it would make the valuation of the capital stock, after deducting the indebtedness, exceed the par value thereof, namely, $4,000,000. And if the commissioners, under these circumstances, were to be obliged to deduct the actual value of the real estate, and not its assessed valuation, we concede that there would be nothing upon which an assessment could be laid or predicated. But as the commissioners were directed not to deduct the actual value of the real estate, but only the assessed value thereof as exempted, it would be their duty to make only that deduction which the statute allowed. We think the relator, upon the figures submitted, shows that the capital stock was unimpaired; that there remained a surplus of $161,421.87 after deducting an eight per cent dividend on the par capital for the preceding year, and that the commissioners were FIRST DEPARTMENT, NOVEMBER TERM, 1892. bound to adopt at least a par value of the capital as the actual valuation of the capital stock for the purposes of assessment. And upon examination, if the indebtedness, as claimed, and the assessed valuation are deducted before determining what amount is taxable, it will be found that the amount, as fixed by the commissioners, was not excessive. For the reason, therefore, that we do not see that the relator was aggrieved, or could be aggrieved, by the method pursued, and the amount, after the deduction made by the learned judge at Special Term, having been fair and just to the relator, we are of opinion that the disposition made by the Special Term was proper and should be affirmed, without costs. VAN BRUNT, P. J.: I concur in the result of the foregoing opinion, except to costs. I see no reason why an affirmance should be had without costs. I think we should affirm, with costs. LAWRENCE, J.: I think that the affirmance should be with costs. REBECCA ELSBERG, AS EXECUTRIX OF ALBERT ELSBERG, Life insurance policy — payable to a creditor as his interest may appear· the creditor must prove his interest -a stipulation in a policy available only to the company. Rebecca Elsberg, as executrix of Albert Elsberg, deceased, having brought an action against a life insurance company and others to determine conflicting claims existing between herself, as executrix, and Samuel D. Sewards, to the avails of certain policies, the company paid $2,500, the money due on the policies, into court. The complaint alleged that there was due Sewards only $1,500, while his answer claimed more than $2,500. The policies had been taken out to secure Sewards for a debt due him from Albert Elsberg, and were payable to him as a 'creditor as his interest may appear," and contained a clause that a claimant must show an insurable interest; that a FIRST DEPARTMENT, NOVEMBER TERM, 1892. creditor could not recover more than his bona fide indebtedness, with interest, and that as to all amounts in excess thereof the policy should be void. Upon the trial of the action the plaintiff produced the policies, but gave no sufficient proof of the state of the accounts between her as executrix and Sewards, and at the close of her case the defendant Sewards moved to dismiss the complaint and for a judgment for the full amount deposited, which was granted. Upon an appeal by the plaintiff: Held, that such decision was erroneous. That the plaintiff had made a prima facie case entitling her to the money, subject to Sewards' claim as creditor as the same should be made to appear. That the clause in the policy, providing that in the case of a creditor it should be void beyond his bona fide indebtedness, was a protection to the company forbidding the creditor to speculate upon his debtor's life. That this provision was not available to the creditor, and its effect had been waived as to the company by its payment of the whole sum into court. That the question which remained was as to the rights of the executrix and of Sewards to the fund, and that the rights of the latter, by the terms of the policy, were only such as he made to appear. That as he had given no proof of his claim, it was error to award him the whole sum, or any sum, except upon proof that he was entitled thereto. APPEAL by the plaintiff Rebecca Elsberg, as executrix of Albert Elsberg, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 26th day of May, 1892, in favor of the defendant Samuel D. Sewards, dismissing the complaint, with costs, after a trial by the court at the New York Special Term. John Alexander Beall, for the appellant. W. W. Gage, for the respondent. O'BRIEN, J.: This action was originally brought by plaintiff, as executrix of Albert Elsberg, deceased, against the Mutual Reserve Fund Life Association, David M. Koehler and Samuel D. Sewards, to determine the conflicting claims made to two life insurance policies issued by said association upon the life of Albert Elsberg, one for $2,000, and the other for $500. The life association made an application for leave to pay the money into court and for a discontinuance of the action as against it, which was granted, and the amount of the two policies was deposited and so remained, subject to the order or FIRST DEPARTMENT, NOVEMBER TERM, 1892. decree of the court in this action. The defendant Koehler was not served, for the reason, which was made to appear upon the trial, that he had no interest in the policies, the same, after his indebtedness was paid, having been assigned to the defendant Sewards, who alone answered and defended the action. It will thus be seen that, at the time of the trial, the question presented for determination was as to the conflicting claims of the plaintiff, as executrix, and Sewards, as creditor, of Albert Elsberg, to the money paid by the life association into the court. The plaintiff, suing in her representative capacity as executrix, which was not denied by the answer, asserted that the amount due Sewards, for which the policies were assigned to him, did not exceed fifteen hundred dollars. The answer claimed that there was due a sum far in excess of the amount deposited, and that Sewards was entitled to the whole amount thereof. According to the terms of the policies, which upon the trial were offered and admitted in evidence, it appeared that the same were issued to secure the payment to the defendant Sewards of an indebtedness due him by the plaintiff's testator, and were made payable to "Samuel D. Sewards, creditor, as his interest may appear." There was a further provision in the policies, as follows: "An insurable interest existing at the time of the assignment or transfer must be shown by all claimants at time of claim hereunder; and claims by any creditor as beneficiary or assignee shall not exceed the amount of the actual bona fide indebtedness of the member to him existing at the time of said death, together with any payments made to the association under this certificate, or policy of insurance, by such creditor, with interest at six per cent per annum, and this certificate or policy of insurance, as to all amounts in excesst hereof, shall be void." In addition, plaintiff's counsel offered in evidence two letters, in the handwriting of the deceased, signed by him and bearing date six months before his death; also a memorandum made by him four months before his death, which, under objection, were, we think, properly excluded, because not shown to have been, in any way, communicated to the defendant; nor were they admissible as declarations against interest, having been offered by the plaintiff to establish a claim by the deceased in the fund. |