(39 Misc. Rep. 467.) and 114 New York State Reporter PEOPLE ex rel. CORD MEYER CO. v. FEITNER et al., Tax Com'rs. (Supreme Court, Special Term, New York County. December, 1902.) 1. CERTIORARI-Review of TAX ASSESSMENt-Reference. On certiorari to review an assessment the court will order a reference to take testimony under Laws 1896, c. 908, § 253, providing that such testimony shall be taken where the application tenders a question of fact, and contains a statement of fact, which, if true, would require a reduction or cancellation of the assessment only when the application tenders such question. 2. TAXATION-CAPITAL STOCK-VALUATION. The taxable value of the capital stock of a corporation is ascertained by deducting from the value of its realty and personalty its debts and the assessed valuation of the realty. Where the value of the realty of a corporation and its personalty amounts to $506,847, and the debts amount to $55,000, and a written statement to the tax commissioner shows the assessed value of its real estate as over $400,000, an assessment of $51,800 on the capital stock was proper, the actual value thereof not being stated, nor whether it was worth less than par. 4. SAME. Where a corporation has declared the assessed valuation of its real estate to be over $400,000, on a petition to review the assessment of its capital stock, from which the value of its realty should be deducted, a statement that such value was $460,000 should be given no weight. Action by the people, on the relation of the Cord Meyer Company, against Thomas L. Feitner and others, commissioners of taxes, to cancel an assessment of its capital stock. Writ dismissed. Sheehan & Collin (John L. Wells, of counsel), for relator. George L. Rives, Corp. Counsel (George S. Coleman and Curtis A. Peters, of counsel), for respondents. SCOTT, J. The relator seeks by this proceeding to obtain a cancellation of the assessment of its capital stock. The assessment was first placed at $500,000, but upon an application to the commissioners it was reduced to $51,800. The relator, being still dissatisfied, brings this proceeding. The property of the relator consists of both real and personal property, and the rule for ascertaining the taxable value of the capital stock is well established, and is conceded by the relator. That value is to be ascertained by adding together the actual value of its real estate and personal property and deducting therefrom the sum of its indebtedness and the assessed value of its real estate. People v. Barker, 144 N. Y. 94, 36 N. E. 13. The question as to whether or not the commissioners have erred in making the assessment is to be determined primarily by the preliminary statement made to the commissioners to enable them to fix the assessment and by the facts set forth in the application for a reduction. The court sits, not in the place of the taxing officers, but in review of their action, and for this reason can act only upon the case as presented to the commissioners, and not upon some new claim or new statement of facts contained in the petition for the writ of certiorari. It is to be presumed, and the law will presume, that in the preliminary statement and in the application for reduction the relator stated the case as favorably for itself as an adherence to the exact facts of the case will permit. It will also be presumed that when it makes its preliminary statement and application for reduction it actually knows its own financial condition. Section 253 of the tax law, providing for taking evidence in certiorari proceedings, does not require that such evidence shall be taken in every proceeding, but only where the application for a reduction of the assessment tenders a question of fact, and contains a statement of fact, which, if taken as true, would require a reduction or cancellation of the assessment. If, upon the admitted facts as shown by the preliminary statement and the application for reduction, it clearly appears that the assessment of the capital stock was not excessive, there is no occasion for taking evidence. In the preliminary statement the relator stated that its total gross assets, including real estate, were $506,847.01, and that of this total the real estate amounted to $500,000, and its personal property $6,847.01. It further stated that the real estate had been paid for in stock, and that the actual value at which such real estate is carried on the books of the corporation as an asset was $500,000. It omitted to state the actual value of the capital stock, or whether it was worth less than par. In its application for a reduction of the assessment it made no reference to or claim respecting the actual value of its real estate. The cominissioners were, therefore, clearly justified, in considering the application for a reduction of the assessment, to take the real estate as of the actual value of $500,000, and there is nothing in either the preliminary statement or the application for reduction to suggest any question as to this valuation, or to call for the taking of evidence relating thereto. No question is made as to the value of the personal property. In stating the assessed value of its real estate the relator was singularly disingenuous. The blank furnished by the respondents upon which the preliminary statement was made asked for the assessed value of the real estate, and requested that it be described by ward and ward map numbers. The statement made in response to this question was: "Not all the real estate of the company is located in New York City. It has several hundred parcels in various boroughs, which have been assessed at over $400,000." In its application for a reduction of the assessment it made no reference to or claim respecting the assessed value of its real estate, and by refusing to give any particulars as to the location of its real estate the commissioners were precluded from ascertaining for themselves what the assessed valuation actually was. Any excess over $400,000, even $1, would have satisfied the statement that the assessed valuation was over $400,000. Assuming, as they had a right to assume, that the relator knew its own affairs, and made as favorable statement for itself as the truth would warrant, the commissioners were fully justified in taking the assessed value of the real estate to be but an inconsiderable sum above $400,000. There is certainly nothing in the preliminary statement or in the application for reduction to suggest any question as to the assessed valuation of the real estate, or to call for the taking of evi and 114 New York State Reporter dence relating thereto. In the petition for the writ of certiorari the relator seems to be still in some doubt as to what it should claim the assessed value of its real estate to be, but, as if to meet and overcome the present assessment, it states the assessed value to be over $460,000, which, as it alleges, exceeds the real value. These expanded claims are raised for the first time by the petition, and, not having been incorporated into either the preliminary statement or the application for reduction, and never having been laid before the commissioners, cannot now be considered or made the basis for a reduction of the assessment in this proceeding. "The commissioners had a right to rely upon the statements made, and, if they were incorrect, the relator is without redress. People v. Barker, 75 Hun, 6, 26 N. Y. Supp. 971. Taking the statement presented by the relator to the commissioners, it appears that the total gross assets included real estate valued at $500,000 and personal property at $6,847.01, making total gross assets of $506,847.01. Its indebtedness was $55,000, and the assessed value of its real estate "over $400,000." If that assessed value were exactly $400,000, the total deduction to be made from the gross assets would be $455,000. The taxable value of the capital stock in that case would be $51,847. It was assessed by the commissioners at $51,800, so that they apparently considered that the assessed value of the real estate might have been "over $400,000" by the sum of $47, a sum quite consistent with the statement made by the relator. It appears, therefore, that the commissioners, in finally fixing the assessment of the relator's capital stock, accepted and acted upon the relator's own statements. There is, therefore, nothing upon which to take evidence, and nothing to impeach the accuracy of the assessment. The writ must, therefore, be dismissed, with costs. Writ dismissed, with costs. SELIGSBERG v. SCHEPP. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. MASTER AND SERVANT SERVICES ADVANCEMENTS - ACCOUNTING-INSPEC TION. In an action by plaintiff to recover for services in transactions on the New York Stock Exchange and for advancements, where defendant did not allege that any particular account or entry sought to be examined was necessary to enable him to prepare his answer or prove his defense, or that any account or entry in the books would be of any value to him, an order granting defendant the general right to inspect plaintiff's books, to discover if there was any defect in plaintiff's proof, or anything that would justify a defense or counterclaim, was error. 2. SAME-ORDERS-RESETTLEMENT APPEAL-NOTICE. Where an order is resettled on notice, the order originally granted is superseded by the resettled order, and hence a notice of appeal from the order as resettled by an order entered on a later day, and from each and every part thereof, brings up for review the entire order as resettled. 1. See Discovery, vol. 16, Cent. Dig. §§ 111, 112. Appeal from special term, New York county. Action by Abraham Seligsberg against Leopold Schepp. From an order granting inspection of plaintiff's books and papers before answer, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. George W. Seligman, for appellant. INGRAHAM, J. The plaintiff commenced this action to recover the balance due for services rendered under a contract between the plaintiff and the defendant. The plaintiff's firm had purchased, sold, cleared, and carried for the defendant stocks, bonds, wheat and silver certificates, and advanced moneys, at the request of the defendant, under an agreement by which the plaintiff's firm was to be paid a commission and interest upon advances made, the plaintiff claiming that there is a balance due him of upwards of $13,000. The summons and complaint having been served, the defendant has applied for and obtained an order requiring the plaintiff to deposit with this attorney all books of Seligsberg & Co. containing accounts, records, or entries of all business transactions connected directly or indirectly with Leopold Schepp, the defendant, and also all books showing the rates of interest paid and received by them in connection with said transactions, and that said discovery and inspection be made by the deposit by the plaintiff in the office of his attorney of the said books, and that they remain for 60 days after the deposit of the same as aforesaid, and be open to the examination of the defendant, his attorneys and accountants, with leave to take copies thereof, or any part thereof. The application was based upon the petition of the defendant, alleging that the transactions covered a period of about six years, and involved the purchase and sale of stocks, bonds, silver certificates, and wheat representing many million dollars; that the defendant has no means whatever of ascertaining or determining as to the correctness of the balance claimed to be due from him to the plaintiff otherwise than by the production and discovery or inspection, with copy, of the books relating to said cause of action, which were kept by said Seligsberg & Co., and which are now in the possession of the plaintiff, and which contain entries of the transactions referred to in the cause of action set forth in the complaint; and that certain alleged statements were furnished to the defendant by the plaintiff from time to time, but that the said statements are incorrect and unreliable, and numerous errors and mistakes of various kinds have been discovered therein, and many of such errors and mistakes have been acknowledged to be such by the plaintiff or his attorneys; and said statements do not contain information contained in and obtainable from said books which is necessary to enable the petitioner to prepare his answer to the complaint, and to prepare for the trial of this action. We think this petition fails to state facts which would justify the court in requiring the plaintiff to submit for the examination by the defendant and his accountants all his books and papers containing all entries of his transactions for others. The plaintiff seeks to recover a and 114 New York State Reporter balance due from the defendant, and upon the trial he must prove all of the transactions between himself and the defendant, and the transactions that they made on account of the defendant for which he is entitled to recover. The effect of this order is to allow the defendant to obtain a knowledge of all of the plaintiff's testimony and of the witnesses by which the plaintiff will prove his cause of action. It is not denied but that the defendant has the statements furnished by the plaintiff specifying the transactions upon which his demand is based, and it is difficult to see how an inspection and examination of the plaintiff's books are necessary, except to enable the defendant to discover whether or not the plaintiff will be able to prove upon the trial the correctness of these statements. The defendant alleges that he wishes to set up a counterclaim to recover $50,000 from the plaintiff, but his allegations in respect to this counterclaim are extremely vague and indefinite, and it is quite apparent that he has no knowledge of any fact which would justify him in alleging that he has any cause of action against the plaintiff. While orders of this character have been made, it is only in cases where a reiation of trust and confidence existed between the parties, and where such an inspection is absolutely necessary for the protection of the party making the application. The relations between these parties were not the usual relations between a customer and his broker. Both plaintiff and defendant were members of the New York Stock Exchange, and it is alleged, and not denied, that a vast majority of these transactions were made by the defendant, the plaintiff simply carrying out the transactions made by the defendant himself; and that during the period the defendant was constantly in the plaintiff's place of business, examined the books, and had personal knowledge of the transactions made by the plaintiff on his behalf. In such a case, to entitle a party to compel his opponent to submit the books relating to his business to an examination, it must at least appear that some particular account or entry in the books sought to be examined is necessary for the party making the application either to prepare his pleading or to prove his defense upon the trial. Here the defendant does not wish to obtain an examination or copy of any particular account or entry. Indeed, there is no allegation that an account or entry in the plaintiff's books will be of any value to him, either in framing his answer or as evidence upon the trial. What he wants is a general right to go over the books to discover if there was any defect in the plaintiff's proof, or anything that would justify him in a defense, or in interposing a counterclaim; and a discovery is never allowed for such a purpose. These books are the books of the plaintiff's business. In that business the defendant had no concern; and, in the absence of a statement of any fact that could be proved by the books which would aid the defendant in preparing his answer, there is no basis for an order requiring the plaintiff to exhibit to the defendant all of the accounts between himself and his customers, and in allowing him to roam at will through the books containing records of private transactions for others. We think, therefore, that the application. should have been denied. The defendant claims that the notice of appeal is not sufficient. It seems that an order was originally entered, which the court, upon |