the same way and with the same effect as though the credit had originally been allowed in favor of such assignee. The comptroller shall forthwith send written notice of his determination upon such application to the applicant, and to the attorney-general, which notice may be sent by mail to his post-office address. (Sec. 198, former sec. 195, Tax Law, as amended by ch. 642, L. 1903, ch. 734, L. 1907, taking effect August 14, 1907.)

Source: L. 1880, ch. 542, sec. 19, as added by L. 1889, ch. 463.

Prior to amendment of 1903 corporation could not offset a claim against the state on a readjustment.-When on a readjustment of a franchise tax imposed upon the Panama Railroad Co., that company having been credited with a certain sum assigns a part of that credit to the Western Union Co., the relator, which attempted to offset that part against the state's claim for taxes assessed against it, it was held that the corporation was not at liberty to offset such assigned claim, against a claim which the state had against it. People ex rel. Western Union Tel. Co. v. Roberts, 30 App. Div. 78 (1898); aff'd 156 N. Y. 693.

Failure to verify petition for resettlement is no ground for assuming facts therein stated are insufficient on certiorari.When the comptroller has granted an application for a resettlement of a tax on a petition properly signed, but not verified, the court, on certiorari, cannot assume that in this respect there was not sufficient proof before the comptroller. People v. Campbell & Roberts, 88 Hun, 545 (1895).

On rehearing burden on corporation.-It is for the corporation on application for a rehearing to establish the fact that the conclusion of the comptroller was erroneous. Upon such application for a rehearing the corporation should make an inventory of all the real and personal property and money, if any, owned by it within the state and furnish satisfactory proof that it owned no property therein except as set out in the in

ventory; whatever real or personal property it has within the state is presumptively part of its capital stock and liable to taxation. People ex rel. Am. Axe & Tool Co. v. Roberts, 82 Hun, 313 (1894).

Comptroller cannot increase original assessment; meaning of charge and credit.-On application for a revision if a corporation fails to show grounds for a readjustment, the comptroller cannot increase the amount of the tax-as originally fixed. The phrase "charge or credit" evidently has reference to the state of account between the state and party taxed. A tax, if illegal and already paid, is to be credited; if the tax is unpaid and diminished, it is to be charged. People ex rel. Eppens Co. v. Roberts, 51 App. Div. 153 (1900).

Revision despite voluntary payment.-Application may be properly made for revision of a tax imposed upon and paid by a corporation exempted from any taxation under the act, even if the tax was voluntarily paid. People ex rel. Edison Elec. Ill. Co. of N. Y. v. Wemple, 141 N. Y. 471 (1894).

When comptroller's determination binding.-The determination of an assessing officer that a corporation is exempt as a manufacturing corporation is not binding on his successor upon application to secure an exemption from taxation for a subsequent year. People ex rel. N. Eng. Dressed Meat & Wool Co. v. Roberts, 155 N. Y. 408 (1898). But the comptroller cannot, of his own motion, change the amount of a license fee fixed by him or his predecessor. The same is in the nature of a judicial decision. People ex rel. Spencerian Pen Co. v. Kelsey, 105 App. Div. 133 (1905).

After a report has been made by a foreign corporation, the value of the capital stock employed in the state will not be changed, on a re-hearing, where it is claimed that the debts

exceed the assets, when it is not shown why the whole indebtedness was not stated in the report and how the debt arose. People ex rel. Int. Cont. Co. v. Roberts, 27 App. Div. 400, aff'd 158 N. Y. 666.

Corporation not obliged to present further testimony.On an application for a revision of the tax under section 198 (formerly sec. 195) of the Tax Law, the petitioner is not obliged to present further testimony or offer new witnesses for examination. The word "rehearing" does not appear in this section, and the corporation may rely on the evidence and accounts already presented. People ex rel. Studebaker Co. v. Knight, 66 App. Div. 150 (1901).

CERTIORARI

Section 199 of the Tax Law, providing for the review of the comptroller's determination, reads as follows:

Review of determination of comptroller by certiorari.—The determination of the comptroller upon any application made to him by any person, partnership, company, association or corporation for a revision and resettlement of any account as prescribed in this ar ticle, may be reviewed both upon the law and the facts, upon certiorari by the Supreme Court at the instance of any person, partnership, company. association or corporation affected thereby, and in the name and on behalf of the people of the state. For the purpose of such review the comptroller shall return, on such certiorari the accounts and all the evidence before him on such application, and all the papers and proofs upon the original statement of such account and all proceedings thereon. If the original or resettled accounts shall be found erroneous or illegal, either in point of law or of fact, by the Supreme Court, upon any such review, the accounts reviewed shall then be corrected and restated, and from any determination of the Supreme Court, upon any such review, an appeal to the Court of Appeals may be taken by either party. (Former sec. 196, Tax Law of 1896.)

Source: Ch. 542, L. 1880, as amended by ch. 463, L. 1889.

Section 200 provides:

Regulations as to such writ of certiorari.-No certiorari to review any audit and statement of an account or any determination by the comptroller under this article, shall be granted unless notice of application therefor is made within thirty days after the service of the notice of such determination. Eight days' notice shall be given to the comptroller of the application for such writ. The full amount of the taxes, percentage, interest and other charges, audited and stated in such account, must be deposited with the state treasurer before making the application and an undertaking filed with the comptroller in such amount and with such sureties as a justice of the Supreme Court shall approve to the effect that if such writ is dismissed or the determination of the comptroller affirmed, the applicant for the writ will pay all costs and charges which may accrue against him, or it, in the prosecution of the writ, including costs of all appeals. (Former sec. 197, Tax Law of 1896.)

Source: Ch. 542, L. 1880, sec. 17, as added by ch. 501, L. 1885.

Code provisions applicable.-The right to the writ being expressly conferred by statute (section 199, Tax Law) its issuance is provided by section 2120 of the Code. It can only be issued out of the Supreme Court (Code, section 2123). The application for the writ must be made by, or in behalf of, the corporation aggrieved by the determination to be reviewed; must be founded upon an affidavit, or a verified petition, which may be accompanied by other written proof; and must show a proper case for the issuance thereof. It can be granted only at a term of the Appellate Division of the Supreme Court or at Special Term (Code, section 2127). If granted at Special Term, it is invariably granted in the case of a corporation in the judicial district where the principal office of the corporation. is located. Notice of eight days of the application for the writ must be given by section 200 of the Tax Law and copies of the papers upon which the application is to be made, served therewith. (Code, section 2128.) The writ must be directed to the State Comptroller (Code, section 2129). It must be served, except where different directions, respecting the mode of service

thereof, are given by the court granting it, upon the State Comptroller, in the same manner as a summons in an action brought in the Supreme Court. (Code, section 2130, subd. 1.) The writ must be made returnable, within twenty days after the service thereof, at the office of the Clerk of Albany County, wherein the determination to be reviewed was made (Code, section 2132).

After the writ has been issued, the time to make a return thereto may be enlarged, or any other order may be made, or proceeding taken in the cause, as a similar proceeding may be taken in an action brought in the Supreme Court and triable in the county where the writ is returnable (Code, section 2133). The clerk with whom the writ is filed and the person upon whom the writ is served must make and annex to the writ or to the copy served, a return, with a transcript annexed and certified by him, of the record or proceedings, and a statement of the other matter, specified in and required by the writ. The return must be filed in the office of the Clerk of Albany County, where the writ is returnable (Code, section 2134). If the return is defective the court may direct a further return (Code, section 2135). The writ may be issued to, and a return may be made by an officer, whose term of office has expired (Code, section 2136). The cause must be heard at a term of the Appellate Division of the Supreme Court, held within the judicial department, embracing the county, where the writ is returnable. Either party may notice it for hearing, at any time after the return is complete (Code, section 2138). It must be heard upon the writ and return, and the papers upon which it was granted (Code, section 2138), except where the officer, whose duty it is to make the return, dies, absconds, removes from the state, or becomes insane, after the writ is issued, and before making a return, or after making an insufficient return; and it appears that there is no other officer or person from whom a sufficient return can be procured by means of a new writ; then the court