(211 N.Y.S.)

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HINMAN, and McCANN, JJ.

Frederick C. Filley, Corp. Counsel, of Troy, for appellant.

Mackrell & Ranney, of Troy (Charles J. Ranney, of Troy, of counsel), for respondent.

COCHRANE, P. J. The first difficulty which confronts the plaintiff is the burden of establishing that the place of the accident was a public thoroughfare of the city. In Fountaine v. Fuld & Hatch Knitting Co., 207 App. Div. 542, 202 N. Y. S. 535, some of the authorities bearing on this question were collated by Mr. Justice Hinman. He quoted from the leading case of Speir v. Town of New Utrecht, 121 N. Y. 420, 429, 24 N. E. 692, 694, as follows:

"All we have here is that 'the road was used by the public generally.' But the mere fact that a portion of the public travel over a road for 20 years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities."

In Smith v. Smythe, 197 N. Y. 457, 461, 90 N. E. 1121, 1122 (35) L. R. A. [N. S.] 524), it was said:

"Mere travel by the public upon the roads, without action by the public authorities in repairing or maintaining them, is insufficient [citing authorities]. In People v. Underhill, supra [144 N. Y. 316, 39 N. E. 333], which was a case of dedication, it was held that the mere fact 'that a portion of the public had. traveled over the road for 20 years would not make it a highway; that the user must be like that of highways in general, and the road must not only be traveled upon, but it must be kept in repair, taken in charge, and adopted by the public authorities.'"

[1, 2] In the present case we do not even have the circumstance that "the road was used by the public generally." From what has been stated it is apparent that Cliff street could not be used by the public generally. Its only use was as a means of access to the houses abutting the street. In Holdane v. Trustees of Village of Cold Spring, 21 N. Y. 474, it was questioned whether an avenue which, like Cliff street, was a cul-de-sac was capable of being made a highway by dedication or otherwise. We need not in this case attempt to answer that question, but that circumstance is one which should be considered in connection with other circumstances. The trial justice assumed that there had been a dedication of'this street, and permitted the jury to infer that the city had accepted such dedication. There is no evidence of any dedication, unless it may be inferred from the long-continued existence of the street. No effort was made to trace the history of the

street, except that it appears that the locality in which it exists was formerly part of an adjoining town, and a number of years ago was annexed to the city. The facts which the jury were permitted to consider as bearing on the question of an acceptance of the dedication were fully and clearly stated by the trial justice in his instructions to them as follows:

"The city has made some maps, which have been introduced in evidence, upon which Cliff street has been denoted. There is certainly some sort of an opening there, houses on each side of the street, and lots. It is clearly within the boundaries of the city. The city collects taxes there. They assess the property. They collect water rents. There is some kind of a service pipe. Different city officials have been down there at different times. It has been detailed to you what they have done. The commissioner of public works, before this accident, went down there and built some sort, or reconstructed some sort, of a conduit that laid across the street."

The foregoing summary of facts constitutes all the facts bearing on the question of acceptance, except the wholly trivial and unimportant circumstance that an employee of the city on one occasion, while removing weeds from the streets in general, cut some weeds on the street in question, assuming, of course, that it was a city thoroughfare, and without any knowledge on the subject, and without any directions or instructions in regard to this particular street. In People v. Underhill, 144 N. Y. 316, 325, 39 N. E. 333, 336, it was said by Peckham, J., in considering whether Lafayette avenue, in the village of Sing Sing, was a public street:

*

"It is claimed that a map of the street was made and filed. That mere fact is wholly immaterial. The mere assessment by assessing officers of lands which they described as being on Lafayette avenue is no evidence whatever of a proper acceptance, nor, under the circumstances, was the putting up of signs at each end of the street, naming it Lafayette avenue."

[3] Property owners must pay taxes, whether they reside on a public or private street. The location of a service water pipe is without significance. That existed for the benefit of the individuals residing on the street. The public generally derived no benefit therefrom. It is common knowledge that water pipes and gas pipes frequently cross the lands of individuals. More significant is it that in the year 1921 the commissioner of public works constructed a wooden culvert across the street, and in 1922 put some dirt around the same. The significance of this circumstance, however, is somewhat minimized by his explanation of the reason therefor. It was to divert the surface water, which flowed into Cliff street from Stowe avenue. I do not think a single instance of that kind, under the circumstances here disclosed, is sufficient evidence on which to predicate a finding of a dedication of this street and an acceptance thereof by the city.

(211 N.Y.S.)

[4] The primary purpose of a street is a place for public travel. There is absolutely no evidence that the city ever did anything with a view to making the street more serviceable for travel. The circumstances negative such a purpose. There was no travel, except by those going to or from the few houses on the street. The conditions, as shown by the photographs and as detailed in the evidence, were extremely crude. There was no paving, or grading, or lighting, or sidewalk construction. Everything seems to have been as formed by nature, except the abnormal wooden curbing above described, and except, also, that the wooden curbing was continued for a certain distance by a stone curbing, which seems to have answered the same purpose and fulfilled no other function than the wooden curbing. We may not even say, from this record, where the side lines of the street are. For anything that appears the curbing may have been on private property, even though Cliff street were a city street. But for the reasons stated there is no evidence that any part of the street was owned or controlled by the city. Clearly, in an action by the city to establish its claim of ownership to this street as against individual claimants, it could not succeed on the evidence here presented.

[5] It is also my opinion that, if the defendant was responsible for the condition of Cliff street, the condition which caused the injury to plaintiff is not shown to have existed for such a period of time that the same should have been discovered, and remedied by the city in the exercise of reasonable care and diligence. The general condition of the curbing, it is true, had existed for many years. But the owner of the property bought it about two years before the accident. He testified that he had in the meantime kept the curbing in repair. How long the offending peg had been a menace does not appear. The curbing itself was harmless. Plaintiff saw it, and had no difficulty in stepping over it. It was the peg which caused the injury. Whether it had been there two days, or two years, we do not know. It was incumbent on the plaintiff to show that it had been there for such a length of time as to charge the defendant with knowledge thereof.

The judgment and order should be reversed on the law and facts, and a new trial granted, with costs to the appellant to abide the event. All concur.

(213 App. Div. 493)

PEOPLE ex rel. AMERICAN WOOLEN PRODUCTS CO., Inc., v. STATE TAX COMMISSION.

(Supreme Court, Appellate Division, Third Department. July 1, 1925.)

1. Taxation 165-Order accepted by salesmen in foreign countries held not subject to corporation franchise tax as "orders received or accepted by any officer or agent at any place of business in this state."

Where orders obtained by foreign export corporation's salesmen in foreign countries were transmitted to New York office, for investigation into customer's credit and to ascertain if goods could be obtained, 'and salesmen were thereafter informed that orders would be accepted, but no contracts were consummated until orders were accepted by salesman in foreign country, orders were not taxable as orders "received or accepted by any officer or agent, or at any place of business, in this state," within Tax Law, § 214.

2. Taxation 496 (10)-Burden is on corporation to show error, and extent thereof, in assessment of its franchise tax on income.

On certiorari to review determination of state tax commission in assessing annual franchise tax on corporation's income, under Tax Law, § 214, burden is on corporation to show error in assessment and extent thereof.

3. Taxation 397-Corporate franchise tax should not be based on sum greater than total sales of goods purchased in New York, notwithstanding corporation failed to allocate to state its share of bills and accounts receivable.

Where total sales by foreign export corporation of goods purchased by it in New York was undisputed, and constituted only business subject to tax, maximum franchise tax should not be based on sum greater than amount of such sales, notwithstanding corporation failed to allocate to this state monthly average of bills and accounts receivable, under Tax Law, § 214, thereby precluding tax commission from fixing tax with accuracy, and Appellate Division has discretion to remit proceeding to commission to readjust tax.

Certiorari by the People of the State of New York, on the relation of the American Woolen Products Company, Inc., to review determination of State Tax Commission in assessing annual franchise tax against relator, based on its income for the year 1919. Determination annulled, and proceeding remitted to State Tax Commission.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HINMAN, and McCANN, JJ.

Olney & Comstock, of New York City (Harold T. Edwards, of New York City, of counsel), for relator.

Albert Ottinger, Atty. Gen. (Wendell P. Brown and C. T. Dawes, Deputy Attys. Gen., of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(211 N.Y.S.)

COCHRANE, P. J. The relator was a Massachusetts corporation authorized to do business in this state. It was a subsidiary of the American Woolen Company, also a Massachusetts corporation, and was the export selling agent of that corporation. It maintained an office in the city of New York where numerous clerks, bookkeepers, and stenographers were employed.

[1] The tax commission takes the position that under section 214 of the Tax Law (see McKinney's Consol. Laws and Supp.) the relator was required to allocate to this state

"the average monthly value of bills and accounts receivable arising from * (c) the purchase or sale of, or trading in, goods, wares or merchandise not located at any place at which the corporation conducted a permanent or continuous business without the state, and where the bills and accounts receivable arose from orders received or accepted by any officer or agent, or at any place of business, in this state."

Assuming that the merchandise sold was not located at any place where the relator conducted business without the state, the real question then is whether, under the statute quoted, any―

"bills and accounts receivable arose from orders received or accepted by any officer or agent, or at any place of business, in this state."

The relator was prohibited by its parent corporation from selling goods within the United States. It had during the year in question six traveling salesmen soliciting business in South America and Canada. The method of transacting business is described by the Attorney General in his brief as follows:

"Upon receiving an order, the salesman would transmit the same to the New York office by cable. An officer of the relator located at the New York office would investigate the credit standing of the customer. The officer would then communicate with Mr. Knight, the selling agent of the parent corporation in Boston, to ascertain if the goods could be obtained. If the goods could be obtained, and the credit of the customer was satisfactory, the officer in New York would confirm the sale by cable to the agent in the foreign country. The agent in the foreign country would thereupon fill out a confirmation of the sale on a blank furnished by the relator, sign it in behalf of the relator, cause it to be signed by the customer, and forward the same to the relator in New York. All of the sales were conducted in the same manner. Every one of the agents reported to the relator at the New York office. All of the business which they did was done through the New York office, and all that they did was to submit questions and orders to the New York office by cable or mail."

It seems clear from the foregoing statement that there were no “orders received or accepted by any officer, or agent, or at any place of business, in this state." The orders were taken by the agent in a foreign country. They were accepted by the agent in the foreign country.

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