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Supreme Court, June, 1900.

[Vol. 32.

prepared, and the position shall then be filled therefrom. The right of such temporary appointee to retain such position shall cease within five days on the receipt by the department so appointing of a certification from the secretary of the civil service commission of an eligible list ".

The respondent applied for an eligible list, he was advised that there was none, and that he might make a temporary appointment. Within the month he orders the "temporary reappointment" of the relator. While the use of the word While the use of the word "reappointment" in the order was, perhaps, unfortunate, and not in literal accordance with any language of the act in force, I do not follow the relator in his argument that its use converted the manifestly intended temporary appointment into a permanent one. In view of the interchange of letters, the argument that the use of the word "temporarily " is surplusage is forced and not founded in fact, while the distinctions the relator would draw between appointment and reappointment approach dangerously near to quibbling.

It is a serious question whether the relator could have in May, 1898, received any other than a temporary appointment. The very rule invoked by him to prove his case argues the other way. Regulation 43 of the rules in force at the time of his appointment reads:

"Any person employed in any position in the service of the city of New York, who shall be certified to the secretary by the proper authorities to have left such service without fault or delinquency on his part, and to have performed the duties creditably, may be re-employed in the same position within three years next following his leaving the service. If such employment was, after due certification for the same, under these rules, or under statutes in force at the time the examinations were held, such persons may be re-employed without further examination. If it was not subject to these rules, or to such statutes, such person may be re-employed upon passing an examination pursuant to these rules. If several persons are so certified they shall be placed upon a separate eligible list pursuant to these rules".

The relator was within the three years' limit, but it does not appear that he was of the class that could be reappointed without examination. Conceding concerning which there is no proof, however that there has been proper certification, it does not ap

Misc.]

Supreme Court, June, 1900.

pear that the relator, whose position is now in the classified service, did at any time take an examination for that position. Of course, had he been continued in office no examination would have been necessary upon the extension of the classified service. People ex rel. Wilson v. Knox, 45 App. Div. 537.

But having left, or having been separated from the service he could only be reinstated without examination, provided he had under some statute or rule taken one previously. One of the objects of civil service laws and of the rules and regulations thereunder is to obtain by means of satisfactory examination persons qualified for the respective positions embraced within the scope of the act. As the number of classified positions subject to competitive tests is increased, those seeking to qualify must pass the appropriate examination, but when an examination has been successfully passed in accordance with the law and rules operative at the time of the appointment, no further test is required attendant on a change in the law. This I understand to be the proper interpretation of Regulation 43; and the relator not having passed any examination could not be reappointed without one, and could, it seems, therefore, be assigned only temporarily.

The rules of March 5, 1898, have been superseded by those of July 11, 1899, adopted and approved pursuant to the provisions of the White Law (Chapter 370, Laws 1899). According to Rule 34 no provisional appointment in force at the time of the adoption and promulgation of the new rules could continue for a period longer than one month. Strictly speaking, then, the relator should have been discharged on August 11, 1899. He certainly has no cause for complaint if the respondent, awaiting the arrival of an eligible list, retained him in office a month longer. His appointment was merely a temporary one, incapable of ripening into permanency. People ex rel. Orr v. Scannell, N. Y. L. J., Nov. 15, 1899.

Motion denied, with ten dollars costs.

Supreme Court, June, 1900.

[Vol. 32.

THE PEOPLE ex rel. THE KURSHEEDT MANUFACTURING Co., Relator, V. THOMAS L. FEITNER et al., as Commissioners of Taxes and Assessments, Respondents.

1. Tax

(Supreme Court, New York Special Term, June, 1900.)

Personal property removed from State and to be returned. Tangible personal property which has once had its situs within the State of New York, and which has been sent temporarily without the State, is taxable.

The court ordered a reference to determine whether silk and cotton goods, situate in Massachusetts, and which after being dyed and polished there were to be sent to this State for manufacture into articles produced by a domestic manufacturing corporation, ever had been in this State so that dominion could be acquired over them and held them taxable if it proved that they had so been within this State. 2. Same Permanent deposit, in foreign country, of money.

Money permanently kept by a domestic corporation in an English bank, as a fund to defray expenses incurred in England and France, is not taxable.

CERTIORARI to review the determination of the commissioners of taxes and assessments of the city of New York.

M. A. Kursheedt, for relator.

John Whalen, Corporation Counsel (James M. Ward, A. T. Campbell, of counsel), for respondents.

LEVENTRITT, J. The relator asks that the action of the respondents in assessing its property for the year 1899 be corrected in two particulars.

As to the first, a reference will have to be ordered to determine whether or not certain merchandise owned by the relator, which the respondents taxed and which was then without the State of New York, to be sent into the State, on occasion, as required by the needs of the relator's business, was at any time prior to the day of assessment within the State of New York. By legal fiction the situs of personal property is at the domicile of the owner.

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Supreme Court, June, 1900.

But this fiction must yield in the equitable adjustment of a system of taxation, and it often becomes necessary for the purpose of doing justice, that the actual situs of the thing to be taxed shall be examined. Story Confl. of Laws, § 550; People ex rel. Jefferson v. Smith, 88 N. Y. 576. It has even been said that there is no place for such a fiction in a well-adjusted system of taxation. People ex rel. Hoyt v. Commissioners of Taxes, 23 N. Y. 224, 228. The tax laws preceding the revision of 1896, have been construed to exclude from taxation against a resident personal property owned by him and actually situated in another State or country. Actual dominion over the the subject of taxation furnishes the basis of the power to tax. People ex rel. Hoyt v. Commissioner of Taxes, supra; People ex rel. Jefferson v. Smith, supra; Matter of Estate of Swift, 137 N. Y. 77. While the earlier law provided that "all personal estate within this State" should be liable to taxation (1 R. S., p. 387, § 1), as against the present provision that "all personal property situated or owned within this State is taxable" (Laws of 1896, chap. 908, § 3), the rule as applied to the case under consideration remains unchanged. The reviser's note that section 3 of the Laws of 1896 is the prior section 1" without change of substance", is explained when the word "owned" in the present law is limited to debts and other intangible property. Chapter 392 of the Laws of 1883 made specific provision as to debts and obligations for the payment of money to residents, and declared them personal property within the State for the purpose of taxation. Chapter 908 of the Laws of 1896 the present law repealed the earlier act in toto, but re-enacted its provisions by defining debts and obligations as personal property in subdivision 4 of section 2, and by adding the word "owned" to section 3. But the status of a resident's personal property, capable of having an actual situs outside of the State, remained unchanged as it must remain in any equitably defensible system of taxation. Cooley Tax. 159. Tangible personal property, however, which has or has had, its situs within this State, and is, or has been, sent from the State temporarily, is in my opinion within the spirit or intent of the act. The situs of such property remains here. The property of the relator outside of the State consists of cotton and silk goods in Massachusetts, whence, after being dyed and polished they are required to be sent into this State to be manufactured into

Supreme Court, June, 1900.

[Vol. 32.

the articles dealt in by the relator. If the cotton and silk goods had been in this State so that dominion over them had been acquired, that property should not escape taxation merely because it is sent from the jurisdiction for a brief space, mayhap just prior to assessment day, to be brought back again as soon as prepared for the purposes of domestic manufacture. Even as our theory of taxation does not permit assessments against the personal property of foreign corporations not permanently invested here (People ex rel. Parker Mills v. Commissioners, 23 N. Y. 242; People ex rel. Sherwin-Williams Co. v. Commissioners, 5 App. Div. 246; People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159), so conversely, personal property of a domestic corporation temporarily out of the State, acquires no new situs, but retains that of its owner. I have examined the cases cited by the relator, and many others, and find that wherever personal property of a resident, outside of the State, has had immunity from taxation, the property was permanently beyond the jurisdiction. Thus, to cite only the leading case (Hoyt v. Commissioners, supra), the goods and chattels were permanently situated at New Orleans. The same case contains a recognition of the principle that property temporarily within the State, as chattels in transit, should not be taxed (at p. 240). If, then, the relator's property, concededly temporarily in Massachusetts, was never in New York, it cannot be taxed. If, however, the property was sent from here, I am of the opinion that it is liable to assessment. A careful examination of the record fails to disclose anything from which an inference might be drawn one way or the other. On this point, therefore, a reference must be ordered.

Secondly, as to the money in bank in England. It appears that the fund is permanently kept there, for the purpose of defraying expenses incurred by the relator in England and France. In so far as this money is to be treated as personal property, permanently without the State, it would not be subject to taxation. Regarding the relation between bank and depositor as that of debtor and creditor, then, under sections 2 and 3 of our present Tax Law, the deposit in England would have to be regarded as a debt whose situs is at the residence of the owner, and thus taxable here. The Court of Appeals, however, in treating of the converse of the proposition here considered, held that while under such circumstances the relation of debtor and creditor technically ex

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