It is now claimed that the relator is entitled to a deduction of $2,992,520 from the amount of its assessable assets, as approved by this court, on account of its surplus profits. This question was not considered by us in our review of the case, and we, therefore, think the question should now be determined. Section 3 of chapter 456 of the Laws of 1857 provides that "the capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, * * * shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county." As we understand this statute, the surplus profits or reserved funds mean the accumulations of the company of moneys or property in excess of the par value of the stock issued by it; that its real estate and personal property is to be assessed at its actual value in the same manner as the other personal and real estate of the county is assessed, up to the amount of the par value of the stock issued, and then the surplus profits or reserved funds that have been accumulated in addition which exceed ten per cent of its capital stock shall also be assessed at its *Page 340 actual value and in the same manner. If, however, there is no surplus profits, or if the surplus does not exceed ten per cent of the capital stock, there is nothing to assess as surplus and nothing from which the ten per cent of the capital can be deducted. (People ex rel. Citizens' El. Illuminating Co. v.Neff, 26 App. Div. 542.)
In this case the relator's capital stock issued amounts to $29,925,200. The amount of its assessable assets, as determined by us in our modification of the order of the Appellate Division, is real estate $7,323,200; personal estate $9,492,306.62, thus showing an impairment of the capital of the relator of upwards of thirteen millions of dollars. There consequently could be no surplus from which a ten per cent deduction could be made. It is true that the books of the corporation show a surplus of $5,326.433 of earnings over and above interest and dividends paid, but it was claimed by the relator that the greater portion of this had been paid out in repairs and in the ordinary expenses of the company, and that the fund no longer was in existence as a surplus, and the findings of the referee, as adopted by the Special Term, support this contention, thus leaving no basis upon which a deduction for surplus can be made.
When this case was up for a review in this court upon a former assessment (146 N.Y. 304) the contention was that the assessors had adopted an improper basis in determining the assessable value of the relator's property. This contention we sustained and a reassessment was ordered. In sending the case back we made some suggestions upon the assumption that the capital stock remained unimpaired, and that there was a surplus, and stated that there should be a deduction of ten per cent of the capital. At the time it did not occur to us that the apparent surplus did not equal the ten per cent of the capital, and this oversight makes the statement then made erroneous in that particular.
We have carefully examined the brief of the relator's counsel upon the other questions involved in the case which have already been considered by us in the prevailing opinion. We *Page 341 are, however, of the opinion that there is no question of law involved which has not already been considered.
The motion for a reargument should be denied, without costs.
PARKER, Ch. J., BARTLETT, MARTIN, VANN and LANDON, JJ., concur; O'BRIEN, J., absent.
Motion denied.