There is no dispute about the facts, from which it is clearly made to appear that, exclusive of two pieces of property which the relator owns in fee, amounting to $111,237.43, its capital and surplus consisted entirely of the buildings which had been placed upon leased ground and the leasehold interest therein. There is no suggestion in the record that, outside of a small cash balance, which for the purposes of this discussion need not be considered, the relator had any personal property. Instead of taxing the cost, which was the method pursued by the relator in accounting for the amount of its cajiital and surplus, the commissioners took, as they had the right to do, the actual value of the buildings and of such leasehold interests. If the relator had adopted the latter method and reached the same result as to figures, then, necessarily, the statement would show an impairment of capital to the extent of the difference between the amount invested in the buildings, or their cost, and the actual value of the same in 1896. In determining the amount which should be *329deducted in the nature of real estate assessed the commissioners correctly included the buildings as real estate. The commissioners accepted the relator’s return, showing just how its capital and surplus were made up; and because it thereby appeared, according to their statement, that the capital was unimpaired, they caused a valuation to be made of the buildings; and, upon the theory that the relator was not entitled to credit for the value of the land upon which the buildings were situated, they deducted simply the value of the buildings and the ten per cent exemption provided by the statute (§ 3, chap. 456, Law’s of 1857), and concluded that the amount thus arrived at was the assessable value which they had a right to place upon the relator’s capital and surplus.
This statement of itself shows that the amount of the assessment is erroneous. In accepting the relator’s statement that its capital was unimpaired and that it had a surplus, they should also have taken the further statement — because it is not disputed and there is no question raised about it — that such capital and surplus consisted of the real estate and buildings.- In other words, although it appeared that the capital and surplus were invested in real estate to the full extent, as claimed by the relator, and that by reason of such investment the capital was unimpaired, yet, the commissioners, accepting one part of the statement in reference to the non-impairment, refused to accept the other showing that such non-impairment was due to the fact that there had been an investment of the whole amount of capital and surplus in real estate and buildings. The effect of reducing the value of the property in which the capital and surplus were invested was necessarily a reduction in value of the relator’s capital and surplus. The commissioners agree that the relator has no property but real estate, some of it in fee, some of it leasehold. After accepting the relator’s statement of the amount of its gross assets and as to what constituted the same, it is difficult to understand how, when called upon to deduct the assessed value of the real estate, they can insist that the relator owned only the buildings and not the land, and that, consequently, only the value of the buildings can be deducted, and at the same time hold that the relator owned both the land and the buildings for the purposes of assessment. It is too plain for discussion that if the assessed value of the *330real estate cannot be deducted from the relator’s property liable to taxation, the property cannot be included as liable to assessment. If it is placed on one side of the account as actual value it must go in on the other as assessed value. In other words, the commissioners having found that the relator had no other property going to make up its capital and surplus than what was invested in the land and buildings, they could not place upon it for the purposes of taxation a larger figure than they were prepared to allow when they were required to deduct the value of the real estate for the purpose of seeing what portion of the capital and surplus was liable to taxation. Such a scheme would necessarily result in double taxation. The property has been taxed as real estate, and as it is the same property in which all the capital and surplus of the relator is invested, unless its value is deducted from the amount of such capital and surplus it will be twice taxed; so that the relator, having under its covenant in the lease agreed to pay the taxes, would be again obliged to pay the same tax, not as upon real estate, but as an assessment upon its capital and surplus.
We think that the writ should have been sustained; and inasmuch as the relator has paid, under an assessment against its capital, the tax over again which it was also bound to pay as a tax upon the land, pursuant to the covenant in its lease, the final order should be reversed and an order made canceling that assessment and directing repayment to the relator of the amount of the tax and interest, with fifty dollars costs below and the costs and disbursements of this appeal.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Order reversed and order directed to be entered canceling assessment and directing repayment to relator of the amount of the tax and interest, with fifty dollars costs below and costs and disbursements of appeal.