The relator is a Connecticut corporation and was, in 1894, the owner of certain shares of stock of national and state banks doing business in the city of ISTew York, the market value of which was $49,934. The defendants assessed the relator upon the total amount of this stock. Application was duly made to the defendants to vacate this assessment, on the ground that the just debts of the relator exceeded the aggregate value of the shares. This application was refused.

The Special Term reviewed the assessment on certiorari and vacated it upon the ground that it was illegal, erroneous and void. This order was unanimously affirmed by the Appellate Division.

The learned counsel for the defendants discussed upon this appeal two propositions, viz.: First, that the relator is not entitled to have deducted from its total gross assets, as a liability, the amount of its deposits, upon the theory that it is a debt; second, that the relator is not entitled to have deducted from its apparent surplus, as an investment in property not taxable, $220,000, representing the market value of the United States bonds held by it.

*131 As to the first proposition, it has been decided by this court that the primary relation of a depositor in a savings bank to the corporation is that of creditor and not that of a beneficiary of a trust. (People v. Merchants and Traders’ Savings Institution, 92 N. Y. 7.)

The bank is liable to pay the depositor the amount of his deposit as a debt. This being so, it follows that the amount is to be deducted from the gross assets as a liability.

As to the second proposition, we think the value of the United States bonds should be deducted from the apparent surplus.

The Banking Law of this state requires the shares of national and state banks to be assessed in the place where the bank is located whether the stockholder resides there or not, but he is to be accorded all deductions and exceptions allowed by law in assessing the value of other taxable personal property owned by the individual citizen of the state. (L. 1882, ch. 409, § 312.)

The individual citizen is allowed to deduct from the value of his persona] property his debts and such stocks as are otherwise taxable, and such other property as 'is exempt by law from taxation.

In the case of the individual the amount invested in United States bonds would be deducted if held in good faith. It is urged in the case at bar by the commissioners that if the amount due depositors is deducted from the gross assets as a liability it must have included the United States bonds owned by the relator, as they were doubtless purchased with money received on deposit, and that to deduct the amount again would be to deduct $220,000 of the deposits twice.

We do not think this reasoning is sound.

In ascertaining its apparent surplus the relator is entitled to deduct the amount due depositors as a liability, and from that apparent surplus are to be deducted all the allowances accorded the private citizen in the assessment of his personal property. If the relator elects in good faith to invest its apparent surplus in securities that are not taxable under the laws of this state *132 the assessing officer is bound by the statute to recognize its right to do so.

This rule of assessment has been repeatedly followed in this state. (People ex rel. Savings Bank of New London v. Coleman, 135 N. Y. 231.)

It is unnecessary to go over in detail the figures in this case ■ which have led the court below to hold that, in the year 1894, the relator had no net surplus which was properly taxable.

The learned counsel for the relator, while not conceding that the figures of the appellants’ brief are correct, insists that they show, when corrected, that the debts exceed the taxable assets as follows :

Gross assets.. í...........................$4,089, 343 S3

Deduct item of “ profit and loss,” improperly treated as an asset....................... 34, 32-2 79

True gross assets......................$4,055,020 54

Deduct liabilities........................ 3,722,765 75

Apparent surplus ................... $332,254 79

Deduct exemptions as stated by defendants’ counsel, which includes U. S. bonds....... 357, 206 60

Excess of liabilities.................... $24,951 81

The counsel for defendants insists that the second item in the above statement, called “profit and loss,” which was treated as a liability in the return to the writ of certiorari herein, is an asset. If this position is sound it would leave a net surplus of $9,370.98.

We find nothing in the record which justifies the contention that this item of “ profit and loss ” is an asset, and an inspection of the original account contained in the return seems to indicate that it is a mere fiction of bookeeping in balancing the books, and ought not to appear on either side of the account.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.