New York Terminal Co. v. Gaus

Gray, J. The plaintiff, a foreign corporation, purchased at a judicial sale, held under a decree. in foreclosure of a mortgage given by the Brooklyn Ferry Company of New York, all of the corporate assets and claimed that it acquired the properties sold free of certain franchise taxes theretofore levied by the comptroller of the state. The parties agreed to submit the determination of their controversy to the Appellate Division, in the third department, and that court ordered judgment for the defendant; determining that the franchise taxes were duly assessed and were valid liens upon the property conveyed to the plaintiff. The facts agreed upon in the submission show that the Brooklyn Ferry Company, a domestic corporation carrying on a ferry business on the East river, had defaulted in the payment of the interest due on its outstanding second mortgage bonds. On October 16th, 1906, an action was commenced by the trustee to foreclose the mortgage and, on the same date, a receiver was duly appointed of the ferry company; who *514 duly qualified and took possession of all of its assets. He continued “to hold, operate and manage all of the property of the Ferry Company, until the same was sold. ” On June 25th, 1908, “ all of the property of said Ferry Company, corporeal and incorporeal, save the franchise to be a corporation, * * was offered for sale, subject to all taxes which might be liens thereon, at the time of sale, at public auction, by * * * referee,” etc. The plaintiff “ bid in and purchased all of the assets of said Ferry Company ” and “the title * * - subject to such notice of liens, passed to ” the plaintiff, under the referee’s deed. In 1906 and in 1907, the comptroller of the state levied against the Brooklyn Ferry Company, pursuant to section 182 of the Tax Law, a tax, which became due and payable on the 15th day of January in each of those years; neither of which taxes was paid and as to neither of which had any proceedings for re-adjustment, or for a review, been taken by the company. The facts, perhaps, may be meagrely stated in the submission; but I think quite sufficient appear to enable us to determine the -question of the plaintiff’s right to demand that the tax be declared void. There is but the one question, which needs our consideration, and that is whether the property sold under the decree and conveyed to this plaintiff passed to it burdened with the franchise taxes, levied and unpaid during the two years of the receiver’s operation. I think that it did so pass and that the judgment below was right. Section 182 of the Tax Law imposes an annual franchise tax upon every corporation doing business in this state, “ for the privilege of doing business, or exercising its corporate franchise.” Section 197. of the Tax Law provides that this tax “ shall be due and payable on or before the 15th day of January in each year ” and “such tax shall be a lien upon and bind all the real and personal property ” of the corporation, ‘‘ from the time when it is payable until the same is paid in full. ” It is *515 the contention of the appellant, in effect, that the provisions for a franchise tax have no application to such a case as this, where the corporation is in the hands of a receiver and has ceased, itself, to operate. I think the fallacy of the contention is in an evident assumption that, in his conduct of the business of the corporation, the corporate franchise is not being used by the receiver. The tax levied by the comptroller by virtue of section 182 was a tax upon the franchise, as distinguished from the property of the corporation. It is imposed, as it declares, upon the privilege of carrying on business and of exercising the corporate franchises. (People v. Home Ins. Co., 92 N. Y. 328; People ex rel. U. S. A. P. P. Co. v. Knight, 114 id. 415.) Being, therefore, a tax of this nature; that is to say, a tax not on the property, itself, the argument is advanced that it is not paramount to prior incumbrances of record; in this case, the company’s mortgages, and, therefore, when section 191 makes the tax a lien on the corporate property, it is only the company’s equity of redemption which became affected. I am unable to agree in this view of the question. We know from the record that the receiver, who was appointed of this corporation, continued to operate its ferry business and that the tax levied during the two years was upon its franchise, or privilege, to transact such a business. The reports of the company and the assessments of the comptroller show that. As he had no individual interest, but only the official possession of the property, the receiver could only have operated under the corporate franchise. That he was not a general receiver, as in sequestration proceedings, but only a receiver of the mortgaged property, pendente lite, however marked the distinction, is not material to our consideration. By virtue'of his appointment, this receiver took possession of the mortgaged property and received the earnings as the officer of the court. The title to the property was not changed, but remained in the company, the mortgagor, *516 until the sale under the decree in the action. (Z7. 3. Trust Co. y. N. Y, W. S. & B. Ry. Co., 101 K Y. 418, 483; Keeney v. Home Ins. Co., 11 id. 396.) The receiver was but the arm of the court, which, by virtue of its inherent equity powers and under section 1810 of the Code of Civil Procedure, it reached out, to take in charge the property and to secure it during the litigation, that it might be appropriated as the judgment should determine. Operation of the corporation business might have been enjoined; but from its continuance by the receiver, the legal presumption, of course, is that it was authorized. The corporation was not dissolved; its franchise to conduct the ferry business was inexistence and any operation must have been by virtue of that franchise. The right of its officers to operate was taken away, for the time, by the court and was conferred upon the receiver, as its officer. Operation, therefore, could only have been under the corporate franchise and if so, then, I think that the right of the comptroller to levy a franchise tax attached and that the tax became a lien upon the corporate assets paramount to all prior incumbrances,. It was made paramount by the statute making it <c a lien upon all the real and personal property * * * until the same is paid in full.” (Tax Law, sec. 191; Eaton’s Appeal, 83 Pa. St. 152.) It was paramount, for the reason that the tax was upon the privilege of exercising the corporate franchise and of carrying on the business, through which the company was, by its earnings, to provide for its obligations. The paramount nature of the lien is, necessarily, implied and is not affected by the existence of prior incumbrances; any more than the tax would be affected by the fact that the company had operated its franchise at a loss. (People ex rel. Fifth Ave. Bldg. Co. v. Williams, 198 ¡N". Y. 238, 243.) I am unable to perceive why the principle of the decision in the case of the Central Trust Co. v. N. Y. City & Northern B. B. Co., (110 N. Y. 250), is not applicable to the pres *517 ent case. There a receiver had been appointed in sequestration proceedings. Subsequently, another receiver was appointed in an action to foreclose certain mortgages executed by the company and the first receiver turned over the possession of the property to him and he continued to operate the road. The receiver declined to pay taxes imposed under the Corporation Tax Act of 1880; upon the ground that recourse should be had to the corporation for their payment, “ or to such funds as may remain in the receiver’s hands after the claims of the mortgagees have been satisfied.” Holding that the taxes were upon the franchise, as distinguished from the property of the corporation, and that the railroad was operated by the receiver under and by virtue of the franchise, it was decided that the state had a paramount right to the payment of the taxes. Upon the question of what the receiver was operating, Judge Peckham observed that, in taking possession of the corporate property and in operating it, he “ uses the franchise, which has been conferred by the State upon the company, and he uses it as an officer of the court, which is administering the affairs of the company, and through the court he acts as the company to the same extent pro Jiao vice as if the board of directors were operating the railroad. It is the franchise which is being used in both cases, * * * the same franchise is being used and the road is operated under it by an officer of the court until, by virtue of the legal proceedings connected with the receivership, the receiver is discharged,” etc. (p. 257.) The authority of this decision was, quite lately, recognized and followed in People ex rel. Joline v. Williams, (200 N. Y. 528). When the property of the Brooklyn Ferry Company was sold “subject to all taxes which might be liens thereon, at the time of the sale,” the taxes in question were comprehended as constituting liens upon the property paramount to all prior incumbrances. The plaintiff, *518 in purchasing with such notice, took the corporate property subject to these liens and, in effect, thereby agreed that the property was, primarily, liable for their payment. For these reasons, I advise that the judgment appealed from he affirmed, with costs to the respondent.