Two questions are raised by the relator’s appeal: First, had the •Comptroller authority upon the revision or readjustment of the tax to increase the amount thereof, as was done for the years ending October 31, 1895, and October 31, 1896 ? Second, is the relator a manufacturing corporation wholly engaged in manufacturing within the State within the provisions of section 3 of chapter 542 of the Laws of 1880, as amended by chapter 353 of the Laws of 18.89 ?
The first question is, we think, substantially answered by the decision of this court in the case of People ex rel. Eppens Oo. v. Pdberts (51 App. Div. 152). In that case it was held that to give jurisdiction to the Comptroller to readjust or revise the tax, it must be made to appear that the account of taxes stated by the Comptroller included those which could not be lawfully demanded, and as upon the readjustment no. such fact appeared, the Comptroller was unauthorized to increase the tax assessed. It is urged by the Attorney-General that in the account of taxes stated by the Comptroller and here revised, taxes were included for the years 1893 and 1894 which could not be lawfully demanded; that with this fact proven the jurisdiction of the Comptroller attached and the increase added to the assessment for 1895 and 1896 was, therefore, within the power •of the Comptroller in his revision and readjustment of the account. While, however, the condition to jurisdiction technically exists, it does not necessarily follow that in the permission given to the Comptroller by the statute to revise and readjust was intended to be included the right to increase the taxes assessed. As has been held in the Eppens case, the right to any revision is conditioned upon the fact of the inclusion of some illegal tax in the account. Under the ■contention of the Attorney-General, if one dollar of the account is found to be illegally assessed in any year, this .fact at once vests power in the Comptroller to add any sum he may think proper to the assessment for any other year. If such be the true reading of the statute, we are at a loss to understand why any condition was placed upon the power of' the Comptroller to revise and readjust, other than the mere moving of the party thinking himself aggrieved. It is hardly conceivable that it was the intention to confer the power to increase an assessment, if some part of the tax had been unlawfully assessed, and otherwise withhold it. The provision of law is *305the exercise of the supreme power of the State to take from this corporation its property. By settled principles of interpretation the power claimed must be clearly read in the statute. Within this rule of interpretation, it must be held that the inclusion of a single unlawful item in the assessment of any year included in the account vests in the Comptroller no greater power to increase the assessment otherwise appearing in the account than if this unlawful item had not been included, and that the increase in the assessment for the years 1895 and 1896 was, therefore, unauthorized.
The relator’s contention that the Comptroller was unauthorized to change the basis of his assessment for the years 1895 and 1896 is without merit. If the assessment were not in excess of that to which the corporation was lawfully subject, it is not illegally made, whatever rule may have been adopted by the Comptroller.
Upon the second question raised, it is argued that the business of the relator is solely that of manufacturing, and that within the governing statute the relator was, during the whole period stated in the account, wholly exempt from taxation. Section 3 of chapter .542 of the Laws of 1880 exempted from the tax here imposed “ manufacturing corporations carrying on manufacture within this State.” By chapter 353 of the Laws of 1889 this section was amended so as to exempt only manufacturing corporations or companies wholly engaged in carrying on manufacture within this State. This was the law under which the assessment was made in the account for the years 1893, 1894 and 1895. By section 183 of the General Tax Law (Chap. 908 of the Laws of 1896), a manufacturing corporation is exempt “ to the .extent only of the capital actually employed in this State in manufacturing and in the sale of the product of such manufacturing.” The argument of the relator’s counsel is, first, that both the preparation of the compound and the making of the pavement are manufacturing, and thus that the corporation is wholly engaged in manufacturing within the State. We may concede for the argument that the compounding of the asphalt mixture, which is used in constructing the pavement, is a process of manufacture. We cannot agree, however, that the preparation of the street for the laying of the pavement and the placing of the pavement thereupon is in any sense a process, of manufacture within the meaning of the *306statute. It would hardly be contended that the laying of a brick, pavement was a process of manufacture, although the brick for the pavement may be manufactured. In the preparation of the asphaltum compound which is used in the pavement, it appears that $25,000 of the capital of the relator is employed. Assuming this preparation to be a process of manufacture, the large majority of the capital of the relator is employed in business other than in this manufacture. The relator, therefore, does not reach the condition of the act of 1889 authorizing its exemption from this tax.. .
It is further contended on relator’s behalf that at least $25,000 of the capital should be exempt from taxation under the Tax Law of 1896, as employed in the business of manufacturing. The tax for the year 1896 as originally stated was $168.75. We have held that this tax could not upon this revision be increased. If we assume that the relator is entitled to exemption upon $25,000 of the capital as employed in the business of manufacture, the amount originally assessed is still within the sum which could properly be assessed for the year 1896. The finding of the Comptroller as to dividends, declared, we think a legitimate inference from the evidence. It is-unnecessary, then, to determine whether the preparation of this, asphaltum compound used in making the pavement is a process of manufacture within the meaning of the statute.
These views lead to a modification of the determination of the Comptroller by reducing the tax for the years 1895 and 1896 to the amount originally stated by him in his account.
All concurred.
Determination of Comptroller modified so as to reduce the tax assessed for the years 1895 and 1896 to $168.75 for each year, and as so modified affirmed, with $50 costs and disbursements to relator.