Ingraham, J.
The decision of the court below as to the United States stock miist be considered as correct, under the recent decisions of the supreme court of the United States on the same question.
It is objected, on the part of the plaintiffs, that the place of assessment should be where thb comptroller resides, upon the [202]*202ground that he holds the funds as trustee, and he, not the company, should he assessed.
The property is the property of the company held hy them, not deposited with the comptroller as security. It would not he taxable if the company did not carry on business in this State.
By the provisions of 1 R. S. 387, 5 ed. 905, § 1, all lands and all personal estate within this State, whether owned'by individuals or by corporations, are made liable to taxation; and by section 3 (§ 4 of 5 ed.) debts due on bonds are included under the term personal estate.
By 1 R. S. 389, 5 ed. 908, § 5, every person is to be assessed in the town or ward where he resides, for the personal estate owned by him; and hy section 6, the personal estate of every incorporated company liable to taxation on its capital, shall be assessed in the town or ward where the principal office or place of transacting the financial business is located, or where the operations- of the company shall be carried on. The return states that the place of business of the corporation is in the city of New York, which is admitted by the demurrer.
. The act of 1855, section 1, provides that all persons and associations doing business in this State, and not residents of the State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of the State. Taking these provisions together, I think there can be no difficulty in holding that the place of assessment is the place were- the operations of the corporation are carried on. Generally, under “ persons,” as used in laws providing for taxation, corporations have been included, unless some special provision of law provided in the same case tor the taxation of corporations under another form of assessment. People v. Utica Ins. Co., 15 Johns. 358. And so corporations have been considered as inhabitants, for the purpose of taxation. Ontario Bank v. Bunnell, 10 Wend. 186.
These cases show that corporations are to be included under the general term persons, in regard to their liability to taxation in the place where they carry on their b usiness; and that there is no ground for the objection that the corporation was assessed in the city of New York.
[203]*203The other question is, whether the plaintiffs are liable to be taxed upon the bonds of the city of Buffalo deposited with the comptroller. There can be no doubt but that those bonds are included under the term personal estate, as used in the statute; and the only question which can arise is whether they are property invested in any manner in the business which they carry on. Upon this point there can be but little doubt. The statute forbids foreign corporations from carrying on business of life insurance until such company have deposited with the comptroller securities to the amount of one hundred thousand dollars for the benefit of the policy-holders of the company. L. 1853, c. 463, § 15.
This deposit with the comptroller is necessarily made in connection with the business of the company. Without it they can do no business; and it is so deposited as to be security to those who may hold policies of the company.. It is therefore used in the business of the company and in fact forms its capital in this State, which is liable to its creditors and comes within the definition of capital as defined in Mut. Ins. Co. v. Supervisors of Erie, 4 N. Y. 442.
These securities so deposited with the comptroller form the same kind of capital as that of a domestic corporation incorporated for a similar purpose, in which the capital is the security for those who deal with it. Neither is actually invested in business and used for that purpose, but both form the basis on which the business is transacted and the security from which payment of claims is to be enforced.
So far as the assessment was made on the bonds of the city of Buffalo the same was properly made, and the order appealed from should be affirmed.
Hogeboom, J.
I think the language of the act of 1855, in subjecting to taxation “ all (non-resident) persons and associations doing business in the State of New York,” is comprehensive enough, either under the term “ persons,” or “ associations,” to embrace foreign corporations like the applicants in this case, under the statutory and judicial definitions annexed to those terms; and that there is no sound principle of equity or public policy which should exempt them, more than others# [204]*204from the burdens of government. Whatever may have been the leading or proximate motive for the passage of this act, the generality and comprehensiveness of its terms, in my opinion, forbid the exclusion of companies like the present from its operation. I think, also, m analogy to the general statutory, rule as to the place for taxing corporations (1 R. S. 390), it was properly taxable in the city of New York, where the principal place of business or office of the agency is situated.
The only real embarrassment arises upon the other ground of exemption claimed by the applicant, to wit, that the moneys deposited with the comptroller or insurance superintendent, for the benefit of such of the policy-holders as should be citizens of the State, are not sums invested in any manner in the business of said corporation.
The Argument of the applicant is, that this deposit is not a sum invested in its business, but withdrawn therefrom — separated from the other assets of the company, constituting a special trust fund in the hands of the comptroller, not subject to the control of the company, nor liable to the claims of its general creditors, but declared by law to be merely a security to its policy-holders, residents in or citizens of the United States ; and if invested in the business of the company, is not invested in its business done in this State, inasmuch as it is a 'security for all its policy-holders in the United States.
The argument of the tax commissioners is, that the relators are doing business in this State, inasmuch as they have twenty-eight agencies for the purpose of receiving applications for insurance, transmitting applications to the principal, delivering policies, collecting premiums, and paying losses; that domestic insurance corporations of a like character thus doing business are, by L. 1853 (pp. 888, 889, 1029, 1030), required to have a capital not less than one hundred thousand dollars, which is to be invested in stocJcs, deposited with the comptroller as security for policy-holders, and are by the general laws of the State taxed therefor as capital (1 R. S. 944, 5 ed.); that it is apparent from the praseology of section 15 and other sections of the same act (L. 1853, p.
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Ingraham, J.
The decision of the court below as to the United States stock miist be considered as correct, under the recent decisions of the supreme court of the United States on the same question.
It is objected, on the part of the plaintiffs, that the place of assessment should be where thb comptroller resides, upon the [202]*202ground that he holds the funds as trustee, and he, not the company, should he assessed.
The property is the property of the company held hy them, not deposited with the comptroller as security. It would not he taxable if the company did not carry on business in this State.
By the provisions of 1 R. S. 387, 5 ed. 905, § 1, all lands and all personal estate within this State, whether owned'by individuals or by corporations, are made liable to taxation; and by section 3 (§ 4 of 5 ed.) debts due on bonds are included under the term personal estate.
By 1 R. S. 389, 5 ed. 908, § 5, every person is to be assessed in the town or ward where he resides, for the personal estate owned by him; and hy section 6, the personal estate of every incorporated company liable to taxation on its capital, shall be assessed in the town or ward where the principal office or place of transacting the financial business is located, or where the operations- of the company shall be carried on. The return states that the place of business of the corporation is in the city of New York, which is admitted by the demurrer.
. The act of 1855, section 1, provides that all persons and associations doing business in this State, and not residents of the State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of the State. Taking these provisions together, I think there can be no difficulty in holding that the place of assessment is the place were- the operations of the corporation are carried on. Generally, under “ persons,” as used in laws providing for taxation, corporations have been included, unless some special provision of law provided in the same case tor the taxation of corporations under another form of assessment. People v. Utica Ins. Co., 15 Johns. 358. And so corporations have been considered as inhabitants, for the purpose of taxation. Ontario Bank v. Bunnell, 10 Wend. 186.
These cases show that corporations are to be included under the general term persons, in regard to their liability to taxation in the place where they carry on their b usiness; and that there is no ground for the objection that the corporation was assessed in the city of New York.
[203]*203The other question is, whether the plaintiffs are liable to be taxed upon the bonds of the city of Buffalo deposited with the comptroller. There can be no doubt but that those bonds are included under the term personal estate, as used in the statute; and the only question which can arise is whether they are property invested in any manner in the business which they carry on. Upon this point there can be but little doubt. The statute forbids foreign corporations from carrying on business of life insurance until such company have deposited with the comptroller securities to the amount of one hundred thousand dollars for the benefit of the policy-holders of the company. L. 1853, c. 463, § 15.
This deposit with the comptroller is necessarily made in connection with the business of the company. Without it they can do no business; and it is so deposited as to be security to those who may hold policies of the company.. It is therefore used in the business of the company and in fact forms its capital in this State, which is liable to its creditors and comes within the definition of capital as defined in Mut. Ins. Co. v. Supervisors of Erie, 4 N. Y. 442.
These securities so deposited with the comptroller form the same kind of capital as that of a domestic corporation incorporated for a similar purpose, in which the capital is the security for those who deal with it. Neither is actually invested in business and used for that purpose, but both form the basis on which the business is transacted and the security from which payment of claims is to be enforced.
So far as the assessment was made on the bonds of the city of Buffalo the same was properly made, and the order appealed from should be affirmed.
Hogeboom, J.
I think the language of the act of 1855, in subjecting to taxation “ all (non-resident) persons and associations doing business in the State of New York,” is comprehensive enough, either under the term “ persons,” or “ associations,” to embrace foreign corporations like the applicants in this case, under the statutory and judicial definitions annexed to those terms; and that there is no sound principle of equity or public policy which should exempt them, more than others# [204]*204from the burdens of government. Whatever may have been the leading or proximate motive for the passage of this act, the generality and comprehensiveness of its terms, in my opinion, forbid the exclusion of companies like the present from its operation. I think, also, m analogy to the general statutory, rule as to the place for taxing corporations (1 R. S. 390), it was properly taxable in the city of New York, where the principal place of business or office of the agency is situated.
The only real embarrassment arises upon the other ground of exemption claimed by the applicant, to wit, that the moneys deposited with the comptroller or insurance superintendent, for the benefit of such of the policy-holders as should be citizens of the State, are not sums invested in any manner in the business of said corporation.
The Argument of the applicant is, that this deposit is not a sum invested in its business, but withdrawn therefrom — separated from the other assets of the company, constituting a special trust fund in the hands of the comptroller, not subject to the control of the company, nor liable to the claims of its general creditors, but declared by law to be merely a security to its policy-holders, residents in or citizens of the United States ; and if invested in the business of the company, is not invested in its business done in this State, inasmuch as it is a 'security for all its policy-holders in the United States.
The argument of the tax commissioners is, that the relators are doing business in this State, inasmuch as they have twenty-eight agencies for the purpose of receiving applications for insurance, transmitting applications to the principal, delivering policies, collecting premiums, and paying losses; that domestic insurance corporations of a like character thus doing business are, by L. 1853 (pp. 888, 889, 1029, 1030), required to have a capital not less than one hundred thousand dollars, which is to be invested in stocJcs, deposited with the comptroller as security for policy-holders, and are by the general laws of the State taxed therefor as capital (1 R. S. 944, 5 ed.); that it is apparent from the praseology of section 15 and other sections of the same act (L. 1853, p. 893), that the legislature intended to impress the same character upon the deposits of foreign life insurance companies, inasmuch as they prohibited any agent of [205]*205a foreign company to act in any manner in this State in procuring applications for insurance, or in any manner to aid in transacting its business until one hundred thousand dollars were deposited with the comptroller for the benefit of citizen or resident poli cy-holders, in securities “ of the kind required in section 6 for similar companies of this State;” that the deposit is, therefore, made for a kindred, and indeed, identical purpose with that required of domestic incorporations; and must be" regarded as capital for the same purposes and with like effect as in the case of domestic companies, and embraced within the definition of the capital of a corporation declared by this court in the case of Mutual Ins. Co. v. Supervisors of Erie, 4 N. Y. 442, 448, to wit, the fund upon which it transacts its business, which would be liable to its creditors, and in case of insolvency, pass to a receiver; and that, whether this fund is to be regarded as capital or not, it comes within the comprehensive language of the act, of “ sums invested in any manner in its business;” that it is invested in its business, .because it is the fund or foundation upon which it does its business, a prerequisite to the transaction of its other business, a fund to which the creditors or policy-holders resort for payment, which cannot be withdrawn from its business, which measures, in a more convenient way than any other which the legislature could prescribe, the extent of its business; and which furnishes the only medium through which foreign organizations of this nature can be r.eached for the purposes of taxation, or placed upon a similar level of liability with domestic corporations.
These considerations are preponderating, in my mind, to lead me to the conclusion that the relators are brought within the scope and operation of this act of 1855, for the purposes of taxation. I cannot express them in greater force, and I do not deem it necessary to expand the arguments enforcing their applicability to the case under review.
There is nothing in the decision of this court in the case of People v. New England Ins. Co., 26 N. Y. 303, which conflicts with the conclusion just announced. The act of 1853, before mentioned, repealed the act of 1851 (c. 95, which required a deposit of stocks from insurance companies of other States [206]*206doing business in this State), but compelled such deposit from insurance companies of foreign coimtries. The stocks of the Sew England company remaining with the comptroller were, therefore, regarded in the light of a voluntary deposit in no way connected with its business, nor accessible to the claims of its creditors. There is nothing, therefore, in the point in judgment in that case which interferes with the application of the equitable principle proposed to be enforced in the present case.
The decisions of the special and general terms of the supreme court were, therefore, in all respects correct, inasmuch as the exemption of United States stocks from taxation is made imperative upon us by the judgment of the supreme court of the United States; and as both parties have appealed therefrom, the judgment of the court below should be affirmed, without costs to either party, as against the other.
All the judges concurred, except H. B. Seldeh, J., absent.
Judgment affirmed, without costs. of the appeal to either party.
People ex rel. Bank of Commerce v. Commissioners of Taxes, 2 Black, 620; reversing 26 N. Y. 163. Compare Van Allen v. Assessors, 3 Wall. 573; reversing City of Utica v. Churchhill, 33 N. Y. 161; The Banks v. The Mayor, 7 Wall. 16; reversing People ex rel. Broadway Bank v. Hoffman, 37 N. Y. 9 ; Bank v. Supervisors, 7 Wall. 26 ; reversing People ex rel. Bank of N. Y. v. Supervisors of N. Y., 37 N. Y. 21.