Order affirmed, with costs; no opinion.
Concur: GRAY, WERNER, HISCOCK and COLLIN, JJ.
I vote for the affirmance of the order appealed from on the strength of the proposition asserted in the dissenting opinion inNew York Terminal Company v. Gaus (204 N.Y. 512, 519) that the franchise tax imposed by the statute "is levied on the corporation for the privilege, as the statute declares, of carrying on its business in a corporate or organized capacity; not of doing business, but of doing business in a corporate capacity;" in other words, exclusively for the privilege of being a corporation instead of a partnership. And the additional franchise tax required by section 184 is, in my opinion, exactly of the same character. I doubt whether in the true sense of the term it is to be considered a tax, but should not rather be deemed a compensation exacted for the privilege which the state might refuse. If the parties
beneficially interested in the appellant are dissatisfied with the price exacted by the state they may have the corporation dissolved and as individuals carry on the same business that is being done now without the cost of any such charge.
Concur: WILLARD BARTLETT and CHASE, JJ.