Whether the action for the penalty is to be sued for in the name of the people or of an informer or of an official, it is still a civil remedy by the statute. The test is not that the civil action is in form prosecuted in the name of the people, which would make it objectionable. The criticism indulged is that the action is authorized at all after the other remedy allowed by the statute has been resorted to. The doctrine upon which the cases in our state rest gives no room for this technical construction. They proceed upon the ground that the remedies are separate and were so intended by the lawmakers. Neither upon principle nor authority do we regard the one as a bar to the maintenance of the concurrent or independent remedy.

Nor does the determination reached result in putting the defendant twice in jeopardy for the same offense, within the proper meaning of that phrase. He had been once tried on an indictment where different inferences, a different mode of procedure, a different rule as to the competency of witnesses, prevail from what are allowable in the civil action. It was not necessary to obtain the conviction of the defendant before resorting to the penalty. People v. Waterbury, 44 Hun, 493.

Judgment should be reversed, and new trial ordered, with costs to the appellant to abide the event. All concur, except WILLIAMS, J., who dissents in an opinion in which STOVER, J., concurs.

WILLIAMS, J. (dissenting.) The judgment and order should be affirmed, with costs. The action was brought to recover a penalty of $300 for burning logs, etc., in a fallow at a time of year prohibited by section 229 of the forest, fish, and game law (Laws 1900, p. 66, c. 20). That section provides: "Any person violating any provision of this section is guilty of a misdemeanor, and in addition thereto, is liable to a penalty of three hundred dollars." The defendant appellant was arrested for a misdemeanor under this statute, pleaded not guilty, and upon his trial therefor was acquitted. This action was based upon the same prohibited act for which he was tried and acquitted. The trial court held the acquittal on trial for the misdemeanor was a bar to a recovery of the penalty, and the correctness of this ruling is the only question involved in this appeal.

We do not think it necessary to enter upon any discussion of the question involved, inasmuch as there are at least two cases reported which involve practically the same question, and which are directly in conflict with each other. People v. Rohrs, 49 Hun, 150, 1 N. Y. Supp. 672; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684, approved in Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127. The Rohrs Case was decided by the First Department, General Term, in 1888. The Coffey Case was decided in 1885, and was approved in the Stone Case in 1896. The rule of law laid down in the Coffey Case was that adopted by the trial court in the present case, and seems to have been well considered and to be the settled law of the United States Supreme Court. The opinion in the Rohrs Case was a per curiam, and the attention of the General Term was not apparently called to the Coffey Case, or the reasoning of the court upon which that case was determined. The General Term

and 120 New York State Reporter

held the former acquittal was not a bar to the recovery of the penalty. We think, under this condition of the decisions, we should follow the rule laid down in the United States Supreme Court, and that the judgment and order should therefore be affirmed, with costs.

STOVER, J., concurs.

(90 App. Div. 588.)

PEOPLE ex rel. FT. GEORGE REALTY CO. v. MILLER, Comptroller. (Supreme Court, Appellate Division, Third Department. January 6, 1904.) FRANCHISE TAX-CAPITAL STOCK-EMPLOYMENT IN THE

1. CORPORATION STATE.

A corporation having been organized to acquire, hold, and sell real estate, the proceeds of sale of its capital stock, invested in unimproved real estate, is capital stock employed in the state, within Laws 1896, p. 856, c 908, § 182, imposing a franchise tax on such stock.

2. SAME-APPRAISAL-ASSESSMENT.

The sworn appraisal by the treasurer and secretary of the value of a corporation's capital stock is sufficient evidence to support an assessment at a value equal to the appraisal.

3. SAME-APPORTIONMENT.

A franchise tax on the business of a corporation which has done business only 51⁄2 months should be apportioned, and not levied for the full year.

Certiorari by the people, on the relation of the Ft. George Realty Company, to review the proceedings of Nathan L. Miller, state comptroller, in assessing the relator for a franchise tax. Modified and confirmed.

Certiorari issued out of the Supreme Court, and attested on the 30th day of June, 1903, directed to Nathan L. Miller, as comptroller of the state of New York, commanding him to certify and return all and singular his proceedings in assessing the relator for a franchise tax for the year ending October 31, 1902, upon its capital employed within the state during that year, under section 182 of the Tax Law (Laws 1896, p. 856, c. 908).

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Theodore M. Taft, for relator.

John Cunneen, Atty. Gen., and William H. Wood, Dep. Atty. Gen., for respondent.

CHESTER, J. The relator is a domestic corporation organized for the purpose of acquiring, holding, and selling real estate in the city of New York. It was incorporated and commenced to do business about May 14, 1902. It has not paid or declared any dividends. It has a capital of $100,000, of which 994 shares, of the par value of $99,400, have been issued. The amount issued was all used in payment of the purchase price of certain unimproved real estate in that city and for part of the proceeds of a mortgage upon such real estate. If that was not an "employment" of its capital stock within this state, within the

meaning of the tax law, which would subject it to taxation under that law, the relator is enjoying all the benefits of corporate existence and is permitted to exercise its corporate franchises and carry on the very business for which it was incorporated without the payment of any franchise tax. The mere statement of the proposition, it seems to me, carries its own answer. The relator relies upon People ex rel. Niagara River Hydraulic Co. v. Roberts, 30 App. Div. 180, 51 N. Y. Supp. 771, affirmed 157 N. Y. 676, 51 N. E. 1093, in support of its contention that it employed no capital within the state. That was a case where the relator there, as appears by its act of incorporation, was formed for "hydraulic and manufacturing purposes" (Laws 1832, p. 175, c. 116, § 1), and was by its charter made "capable of purchasing, holding, leasing, and conveying any estate, real and personal, for the use of the said corporation." Its entire capital stock was issued in payment of the purchase price of a certain island in Niagara river which was unimproved swamp land, and unproductive, except that about $45 was received annually for the grass crop. The court held, on the authority of People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46, 44 N. E. 787, that, although its capital was invested here, such capital was not "employed within this state" within the meaning of the statute, and therefore that it was not liable to the franchise tax. In the Singer Case Judge Bartlett, who wrote the opinion of the court, said:

"We decide this case on its peculiar facts, and are not to be understood as in any way changing the rule laid down in People ex rel. Seth Thomas Clock Co. v. Wemple, 133 N. Y. 323 [31 N. E. 238], that the capital stock of a foreign corporation employed in this state is represented by the actual value of its property, whether in money or goods or other tangible things."

So, also, the capital stock of a domestic corporation means the property of the corporation contributed by its shareholders or otherwise. obtained by it to the extent required by its charter. Williams v. Western Union Telegraph Co., 93 N. Y. 162-168; Burrall v. Bushwick Railroad Co., 75 N. Y. 211. The capital stock of the relator, so far as issued, represented as it is by the property it purchased with that stock, in which purchase it was used in carrying out one of the purposes of the relator's corporate existence, was clearly employed by it in this state, and cases such as that of the Niagara River Hydraulic Co., supra, and other kindred cases, where the capital exempted from taxation was not necessary to or used for the conduct of the business for which the corporations were organized, but actually withdrawn from such business and otherwise invested, should not serve to exempt from taxation a corporation such as the relator, which comes within the express terms of the statute imposing the tax.

The relator also urges that the comptroller has made an excessive valuation of its capital stock. He assessed it at a valuation of $99,400. He had before him the sworn appraisal of the treasurer and the secretary of the relator fixing its actual cash value at that amount, so that his assessment is not without ample evidence to support it.

The relator, however, had been in existence and exercising its corporate franchises only 52 months of the year for which it was taxed. The tax was laid for the entire year. It should have been apportioned

and 120 New York State Reporter

People ex rel. Mutual
The tax as laid, based

upon the time it had exercised its franchises. Trust Co. v. Miller, 177 N. Y. 51, 69 N. E. 124. upon a valuation of $99,400, at 11⁄2 mills on the dollar, for the entire year amounted to $149.10. For 51⁄2 months, at that rate, it would be $68.34, and it should be reduced to that amount.

Determination of the Comptroller modified by reducing the tax to $68.34, and, as so modified, confirmed, with $50 costs and disbursements to the relator. All concur.

(90 App. Div. 334.)

GOODFRIEND v. TOWN OF LYME.

(Supreme Court, Appellate Division, Fourth Department. January 5, 1904.) TOWNS-CLAIMS REMEDIES-TOWN BOARD-PRESENTATION-ACTIONS.

Town Law, § 180, subd. 7 (Laws 1890, p. 1237, c. 569). provides that claims against towns shall be presented to the town board for audit, and sections 162, 180, subd. 7, pp. 1233, 1237, provide for the certification of claims allowed to the board of supervisors, and for the levy of a tax by them to pay the same. Section 80, p. 1222, requires the supervisors to pay the money on the claim, and section 182, p. 1237, provides that if the supervisors neglect to pay action will lie against the town for such neglect. Held, that the remedy so provided was exclusive, and hence an action could not be brought to recover a claim against a town before presentation and audit by the board.

Appeal from Trial Term, Jefferson County.

Action by John Goodfriend against the town of Lyme. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Brown, Carlisle & Hugo, for appellant.
J. W. Cornaire, for respondent.

WILLIAMS, J. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide event. The action was brought to recover compensation for the support of a pauper child, a charge upon the town, under an alleged agreement with the town board. Recovery was sought for the years 1896 to 1900, both inclusive, at $65 per year, less a small amount paid, and the verdict was for $323.75. Claims for some of the time were presented to the town board, and some allowances were made. There was never any review of the action of the board by mandamus or certiorari. The plaintiff claimed, and the court held, that regardless of the action of the board the plaintiff had his remedy by action to recover the sum claimed to be owing him from the town. In this the court erred. This question was directly passed upon by us in Bragg v. Town of Victor, 84 App. Div. 83, 82 N. Y. Supp. 212. The claim there sought to be recovered upon was a town charge, under the provisions of section 180 of the town law (Laws 1890, p. 1237, c. 569), and it was provided by that section that all town charges should be presented to the town board for audit. We held that the remedy so provided was exclusive and an action would not

lie. The claims here sued upon are also town charges, and the same rule is applicable. A short quotation from the opinion in that case will indicate the principle laid down there:

"No money could be raised with which to pay the claim except through the proceedings provided by law, the presentation of the claim to the town board, its audit by the board, the certificate thereof to the board of supervisors, the levying of the same as a tax upon the town, collection by the collector, payment to the supervisor of the town, and then payment by him to the plaintiff. None of these proceedings were taken in this case, and the law is well settled that an action will not lie against the town to recover a claim which is a proper one for audit by the town board. There is no other way provided by law to raise the money, and the town officials cannot proceed in this way unless the claim is first presented to such board for audit. If the claimant fails to set these proceedings in motion, he certainly ought not to be permitted to make the town liable for the costs of an action resulting in a judgment, which must then be presented to the town board for audit in order to enable the town to raise the money to pay it. He may as well present his claim without the costs as to present the judgment including costs. The remedy suggested is adequate and exclusive. If the town board refuses to act, it may be compelled by mandamus. If it acts, and disallows the claim to reduce the amount, it may be reviewed by certiorari. The policy of the law is very clear," etc.

See, also, Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022; Holroyd v. Town of Indiana Lake, 85 App. Div. 246, 83 N. Y. Supp. 533.

These cases have arisen under the town law enacted in 1890 (Laws 1890, p. 1211, c. 569). Prior to the passage of that law it was well settled that the remedy by presentation to and audit by town board was exclusive, and that no action would lie. People ex rel. Mayor v. Barnes, 114 N. Y. 317, 20 N. E. 609, 21 N. E. 739.

We conclude that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event. All concur.

(91 App. Div. 67.)

PEOPLE v. DANKBERG.

(Supreme Court, Appellate Division, First Department. February 5, 1904.)

1. ASSAULT-VERDICT-EVIDENCE.

Where, in a prosecution for assault, the evidence of all of the witnesses, except prosecutor, agreed that the latter assaulted defendant and kept pushing him away from an oyster stand, and following him up into the street, until defendant finally struck prosecutor with a small cane, inflicting an injury, and the cane was not sufficiently large to constitute a dangerous weapon, but broke in three pieces at the first blow, a verdict convicting defendant of assault was contrary to the weight of evidence.

2. SAME SELF-DEFENSE.

Where, in a prosecution for assault, there was no evidence that defendant intended to do more than drive prosecutor, who was assaulting defendant, away, and had no intent either to take his life or inflict great bodily harm, an instruction defining self-defense as authorizing a person to defend himself when he believes his life is in danger, or he is in imminent danger of grievous bodily harm, but requiring him to retreat, if possible, was erroneous, since defendant, in the defense of his person, was entitled to repel an assault by the use of such force as was necessary, irrespective of his belief that there was danger to his life, or of his suffering grievous bodily harm.