Dun & Bradstreet, Inc. v. City of New York

251 A.D. 25, 295 N.Y.S. 351, 1937 N.Y. App. Div. LEXIS 6852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1937
• Status: Published

Opinions

Per Curiam.

The order should be reversed and the motion denied without consideration of the question whether the New York city sales tax applies to the plaintiff’s business, upon the ground that the facts disclosed do not warrant an action for a declaratory judgment or injunctive relief. The local laws provide a special procedure for the assessment and review of the taxes imposed which in the absence of “ unusual and extraordinary circumstances ” (Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163; affd., 272 N. Y. 668) is the exclusive procedure to be followed (United States Trust Co. v. Mayor, etc., of New York, 144 N. Y. 488; First National Bank v. Weld County, 264 U. S. 450). The circumstances of the present case do not warrant disregard of that statutory procedure any more than in the case of every taxpayer who desires to contest his tax liability under the local law. The fact that the plaintiff’s failure to pay the tax might subject it to criminal prosecution does not entitle it to maintain such an action. (International Mutoscope Reel Co., Inc., v. Valentine, 247 App. Div. 130; affd., 271 N. Y. 622.) Any such danger can, moreover, be averted by payment of the tax under protest if it shall be assessed, and judicial review by certiorari.

The order should be reversed, with twenty dollars costs and disbursements, and the motion granted.

Present — Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.; Dore and Cohn, JJ., dissent and vote for affirmance.