J. (dissenting). The testamentary authority was broad enough to have enabled the executors, if they chose to do it, to integrate a continuation of the door hinge manufacturing business with the questioned real estate activity, as business activities, although they were composed of wholly different natures. Decedent said “ prosecute and carry on said business [door hinge manufacturing] with my estate and property ”, and employees of the manufacturing business were continued in employment in the active management and operation of the real estate. I think, therefore, the executors had power, at least for the periods in question, to continue operations in that way. If so, then as regards the real estate were they, as fiduciaries, concerned therewith solely by reason of holding, leasing and managing it? The method and manner of their operation of the realty properties, their authority under the will, and the value, diversity and number of said properties, incline me to characterize the nature of their undertakings as a business activity conducted in conjunction with the other which was, of course, far different in nature. But one can be in two or more businesses of far different kinds, yet when individually owned, all the kinds may, for the purpose of the tax, be considered one business
In People ex rel. Nauss v. Graves (283 N. Y. 383, 386-387) we are told that the nature of the situation “ does not permit an exact formula.” But it is pointed out that “ there has been evolved the principle which distinguishes between a passive and an active owner or investor.” The latter is described as “ one who himself actively participates in administering the management of the properties.” In view of the principle thus evolved *601it seems to me that the relators have fairly established that, since the executors themselves, under the authority aforesaid, wholly carried on the administration and management of the real estate properties, and thus actively participated therein in an endeavor to accumulate net earnings, which in turn would be commingled in their respective hands with earnings from the manufacturing-business — their whole • activity, including both fields of effort, constituted a business or occupation within a fair interpretation of the provisions of article 16-A of the Tax Law. The case above cited marks out a rather decided difference between the situation there presented and the one here shown. There, those sought to be taxed were passive owners in their own right — tenants in common by inheritance, who allocated “ the active administration of the properties to others and [performed themselves] only such acts as are appropriate to safeguard [their] ownership.” In our case the relators may well be said to belong in the other category, of active owners participating in actually administering and managing the properties.
Hill, P. J., Bliss and Heffernah, JJ., concur with Foster, J.; Brewster, J., dissents in an opinion.
Determination of the State Tax Commission confirmed, with fifty dollars costs.