ROSENTHAL v. CITY OF NEW YORK, 277 N.Y. 488 (1938)

14 N.E.2d 803

SYDNEY ROSENTHAL, Appellant, v. CITY OF NEW YORK, Respondent.

Court of Appeals of the State of New York.Argued March 17, 1938
Decided April 12, 1938

Page 489

Appeal from the Supreme Court, Appellate Division, Second Department.

Page 490

Charles H. Tuttle and Sydney S. Snyder for appellant.

Page 491

William C. Chanler, Corporation Counsel (William G. Mulligan, Jr., and Charles W. Miller of counsel), for respondent.

Per Curiam.

The illegal activity of plaintiff’s assignor in operating unfranchised buses upon public streets was not a business “subject to the supervision” of the Department of Public Service in the sense of that phrase as

Page 492

used in the local laws in question. (Local Law 1933, No. 19, p. 127; Local Laws 1934, Nos. 10 and 21 [published as No. 22], pp. 115, 151.) These laws make a classification for tax purposes. When regard is had for the manifest policy underlying that classification, it is clear that unlawful undertakings are not included in the group upon which the tax is imposed. (New York Steam Corp. v. City of New York, 268 N.Y. 137; New York Rapid Transit Corp. v. City of New York, 275 N.Y. 258; 303 U.S. ___; 58 Sup. Ct. Rep. 721.)

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs to the appellant in this court and in the Appellate Division.

CRANE, Ch. J., LEHMAN, O’BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.

Judgment accordingly.