This is a proceeding to review upon a writ of certiorari the action of the commissioners of taxes and assessments of the city of Hew York in assessing the relator, a foreign corporation with an office in this city, in the sum of $10,000 for the year 1902. The statute provides that “ Honresidents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state.” Laws of 1896, chap. 908, ■§7.
To be liable to such taxation the nonresident must have a permanent or continuous business in this State, and it must, •of course, have some capital invested in that business. The •counsel for the relator concedes that, if the relator is liable at all, to taxation, the amount is $5,070.88.
The question to be determined is whether the relator’s business in this State is permanent or continuous, or whether it is carrying on only a transitory business, making its Hew York branch merely a temporary depot for goods sold, and nothing more. People ex rel. Reversible Collar Co. v. Feitner, 31 Misc. Hep. 553.
In the case of People ex rel. Sherwin Co. v. Barker, 5 App. Div. 246; affd., 149 N. Y. 623, it was held that a foreign corporation which had its principal office and manufactory in Cleveland, Ohio, and sent its manufactured goods to a salesroom in Hew York for sale,the proceeds of which, except a small amount to pay its office expenses, were remitted to Cleveland, was not liable to assessment for the amount of the goods usually kept on hand.
If the relator employed an agent in this State simply to solicit orders and forward them to the home office, and if the *88articles sold were then shipped hy the relator from the home office to the purchasers direct, the relator unquestionably would not be liable to taxation here. People ex rel. Smith Co. v. Roberts, 27 App. Div. 455.
In the case at bar the relator obtained a certificate in 1898 permitting it to do business in this State. This act, although some evidence tending to show an intent to carry on a permanent or continuous business in this State, is not conclusive.
The only witness called was Max Brown, the agent of the relator. Erom his testimony it appears that relator maintains an agent in this city, who solicits orders and forwards the same to the relator for approval and execution. The relator manufactures the goods at the home office, pursuant to approved orders, which read “ to be delivered,” and sends them to its office in Mew York, from which place they are distributed at different dates, as the customers have placed their deliveries. All payments are made to' the home office. Relator has no bank account in this State. The agent gets a “ commission at the end of every month for sales distributed during the previous month.” The rent of the Mew York office is paid partly by relator and partly by the agent. There is only an office boy in addition to the agent. The hoy gets four dollars a week, while the agent receives no salary or compensation other than his commissions.
Under this evidence I incline to the opinion that the relator is carrying on only a transitory business here, making its Mew York branch merely a temporary depot for goods sold, and nothing more. The sales are all closed at the home office, as the Mew York agent merely obtains the orders and transmits them to relator for approval.
The corporation counsel cites the case of People ex rel. Carey Mfg. Co. v. Commissioners, 39 Misc. Rep. 282, where Mr. Justice Scott uses this language, viz.: “ When it appears that such a corporation (foreign corporation) in addition to taking out such a certificate (license to do business in this State), maintains an office, salesroom and storage rooms in this State and keeps goods here for the purpose of sale, and does sell them within the State, a strong case is made for believing that *89the corporation is carrying on a continuous and permanent business here.” The case at bar differs from this authority for the reason that the relator’s sales were closed, as we have seen, out of the State, since the orders were subject to its approval, and the goods were manufactured after the orders had been so accepted by relator in Massachusetts. The price of the goods was paid directly to the relator, who afterward settled with its agent for his commissions. . It cannot be said that the relator “ keeps goods here for the purpose of sale, and does sell them within the State,” within the meaning of the learned justice above quoted.
While it is true that the goods are not delivered direct to the purchaser, still they have already been sold to such purchaser, before their arrival here, and are merely kept temporarily at relator’s Hew York office, until the time for delivery as specified in the order.
I think the application of the relator to vacate the assessment should be granted, with fifty dollars costs and disbursements.
Application granted, with fifty dollars costs.