We dissent from the decision about to be made because we believe it to be in conflict with three recent decisions of this court determining the application of the provisions of the Franchise Tax Law to investments by corporations in real estate. (People ex rel. Singer Mfg. Co. v. Wemple, 150 N.Y. 46;People ex rel. Niagara River Hydraulic Co. v. Roberts,30 App. Div. 180; affirmed on opinion below, 157 N.Y. 676; Peopleex rel. Fort George Realty Co. v. Miller, 179 N.Y. 49.) The opinions of the majority of the court do not assume to overrule those cases, but seek to distinguish the present case from them. We think there is no such difference in circumstance in the case before us as justifies any distinction in principle. In theHydraulic Company case the only property possessed by the corporation was a piece of real estate and the only business carried on by it or corporate functions exercised by it were such as proceeded from that ownership. In the Fort George Company case the corporation was organized for the express and sole business of acquiring, holding *Page 338 and selling real estate. Its capital was invested in lands in the city of New York from which it derived a revenue. It was held not to be subject to the franchise tax. The ground on which the decision proceeded is clearly stated in the opinion of the late chief judge of this court, where he said: "If capital can be invested without being employed — and we have held in two cases that it can — this case is as good an illustration of it as can be found," that is to say, that the acquisition and tenure of real estate accompanied merely by the receipts of the rent accruing therefrom is not an employment of capital within the meaning of the law. We are unable to see that there is any distinction between the present case and the one in which Chief Judge PARKER wrote. But if a distinction can be drawn between the cases we think it very unwise to give effect to it. Of course, in the application of general rules of law to concrete cases, which are the subjects of litigation, the complexity of business and other relations between men is such that the courts are compelled at times to draw narrow distinctions. In no class of cases, however, more than in the case of laws imposing taxes should the construction of a statute once adopted by the courts be firmly adhered to, and refined or subtle distinctions justified or required in other cases carefully avoided. Otherwise, not only is the taxpayer left in doubt as to what it is his duty to pay, but necessarily the floodgates of litigation are opened wide. We fear the result of the decision about to be made will involve the law on the subject before us in confusion. If in our previous decisions we have erred in the construction of the statute the legislature can readily correct the error, and such correction should be sought from the legislature alone.
BARTLETT and HAIGHT, JJ., concur with VANN and WERNER, JJ.; CULLEN, Ch. J., GRAY and O'BRIEN, JJ., dissent in memorandum.
Order affirmed. *Page 339