22 A.D. 282 | N.Y. App. Div. | 1897
The relator is a foreign corporation organized under the laws of the State of New Jersey and is located at Jersey City in that State, where it is engaged in the business of manufacturing and selling beer. It has a malthouse at Watkins, in Schuyler county, State of New York, where it is engaged in making malt. It seems to have
It apj>ears that the relator employed an agent or salesman who lived in Brooklyn and owned there a dwelling house. He was 2>aid for salary and rent of house $150 a month, his salary being $1,500 a year, and the rent being $300 a year. The house was used as a place for the temporary storage of articles sent from Jersey City for the purpose of tilling orders 2n'evionsly obtained and transmitted to the jfiace of business of the corporation in Jersey City. As to this place in Brooklyn, Mr. Kellers, the only witness sworn, testifies : “ It is sort of a storage there. Ques. How much of a stock do you keep there ? Ans. Very little. I don’t simóse it would run over one hundred dollars at a time. It is just'where the drivers go on the route, and can’t take all the stuff in the truck. They leave it there over night and take it the next day. Ques. Drivers from Jersey City? Ans. Yes, sir.” The same witness also testifies at a later-date, as follows: “ Ques. What are the duties of this agent at Brooklyn ? Ans. To help deliver beer; to collect and to receive orders. Ques. The orders he receives he transmits to Jersey City? Ans. Y"es, sir. Ques. And the same is true of orders received by drivers ? Ans. Yes, sir. Ques. The brewery ships direct to the purchasers ? Ans. Yes, sir. Ques. You keep no store in Brooklyn ? Ans. Yrou might call that a storage — whatever you might term it. Ques. But I understand this storage is only occasionally — the putting up of goods over night when the driver hasn’t time to go to Jersey City ? Ans. That is the object of the store or depot. Ques. And no regular
It is quite apparent that the relator did not keep its goods on sale in Brooklyn and had no office or business domicile there within the ordinary meaning of those terms. It provided a place where its agent could take orders and supply temporary storage for packages in the process of delivery from the relator’s place of business in Jersey City.
Within the rulings of the United States Supreme Court the relator had the right through its agents to solicit in this State orders for sales of goods manufactured at and delivered from New Jersey, without any tax or restriction on the part of this State. (Robbins v. Shelby Taxing District, 120 U. S. 489; Brennam v. Titusville, 153 id. 289.) The negotiation of sales of goods which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is said to be interstate commerce. It is not to be presumed that the State intended to tax a business of that kind. If the relator had a right to solicit orders, without being taxed, it certainly had a right with like freedom to make deliveries from its place of business in New Jersey in fulfillment of such orders, and the collection of the moneys from the sales and their transmission to the relator were only incidents to carrying on its interstate business. The fact that the machinery with which an interstate business is carried on is to some extent located within this State does not make such business taxable here. (People ex rel. Penn. R. R. Co. v. Wemple, 65 Hun, 252, 261; affd. in the Court of Appeals, 138 N. Y. 1.)
The cases of People ex rel. Southern Cotton Oil Co. v. Wemple (131 N. Y. 64) and People ex rel. Parke, Davis & Co. v. Roberts (91 Hun, 158) are clearly distinguishable from the present case.
We are of the opinion that upon the facts shown in this case the relator, aside from its business of manufacturing malt, was not doing business within this State within the meaning of our statutes imposing a franchise or license tax. It follows that the determination of the Comptroller should be reversed.
All concurred.
Determination of the Comptroller reversed, with fifty dollars costs and disbursements.