(concurring.) Concededly the tax imposed by the comptroller upon the relator is not a franchise tax, nor a tax upon its property located in this state. It is a tax upon its business. What is that business? The relator is engaged in transporting freight and passengers through the states of New Jersey and Pennsylvania. It has terminal facilities in the city of New. York, where it discharges freight and passengers brought over its lines from without the state, and receives freight and passengers to be transported over its lines to places beyond the state, but none to be transported to points within the state. The only business that is done within the state by the relator is to receive freight and passengers to be sent out of the state, and to receive freight and passengers shipped from without the state to this state. The business described is commerce between the states, and a tax upon it is illegal. Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826; Robbins v. Shelby Co., 120 U. S. 489, 7 Sup. Ct. Rep. 592; Leloup v. Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380. The leasing of property in which to carry on its business, employing workmen, clerks, and agents within the state, and paying them here, the keeping of money in New York banks, depositing and drawing-out the same from time to time, do not constitute a business within the state. All of these things are but incidents of the business carried on by the relator, the machinery by which it is .transacted; it is not the business itself. There is a clear distinction between this case and that of People v. Wemple, 61 Hun, 83, 15 N. Y. Supp. 446. There the court said the company “maintained a sales agency in the city of New York; sold the products of its mills in this state, refined crude oil in this state, maintained a deposit or storage of its products, and kept on deposit in the banks of New York large sums of money for the use of the relator and for carrying on its business.” That describes a business, not the incidents to or the means by which it is carried on, but the business itself, all of which was done within this state. This is not the case of a copartnership or corporation having.its principal place of business in New Jersey, or some other state, establishing a branch house in this state, and carrying on business here, bringing its property here, and mixing it with the general mass of property and commercial capital of the state. . All corporations. engaged in transporting freight and passengers between and through the states must have the means to effect such transportation, and must have terminal facilities; and, while the property owned by them in.the several states, and used, to carry on such business, may be subject to a property tax by the respective states, yet the business itself cannot- be. -And the caring for and maintaining the means or instruments of transportation,, the procuring, leasing, or management of depots, warehouses,- or docks, the employing of men necessary to carry on such transportation, is not, a separate and distinct business which can be taxed. Of course, some part of the relator’s business is carried on in this state; necessarily so. It would not be interstate commerce if part of it was not carried on in different states. But, on the other hand, it appears that none of the relator’s business is carried on wholly within this state,—that is, none of its transporting-business. That which is done wholly within this state is not business, but mefely the necessary incidents of business. Commerce between the .states being the only business in which the relator is engaged, and the tax in question being levied, not .as a property or franchise tax,, but as a tax upon its- business. I *293think the determination of the comptroller was erroneous, and should be reversed. Let an order be entered accordingly, with $10 costs and printing and other disbursements.
Putnam, J., concurs. _ .