Opinion
July, 1905.
Edmund Wetmore, for the appellant.
Curtis A. Peters, for the respondents.
Present — O'BRIEN, P.J., PATTERSON, INGRAHAM, McLAUGHLIN and HATCH, JJ. (INGRAHAM and McLAUGHLIN, JJ., dissenting).
Order affirmed, with costs, on the opinion of the court below.
The following is the opinion of LEVENTRITT, J., delivered at the Special Term:
The principle and reasoning of People ex rel. Yellow Pine Co. v. Barker ( 23 App. Div. 524; affd., 155 N.Y. 665) are authority for the proposition that the credits or bills receivable of the relator are taxable as capital invested in business in this State within the meaning of section 7 of the Tax Law. I fail to see how these credits become less taxable because they are the proceeds of sales made of imported goods in original packages. This is not a tax on imports and thus does not contravene article 1, section 10, of the Federal Constitution; it is not a tax on the sales as such, or on the right to sell goods in the importer's hands while in their original packages. But when these packages have been sold and the proceeds have become part of the assets of a person doing business in this State, as in the case of this relator ( People ex rel. Carey Mfg. Co. v. Comrs., 39 Misc. Rep. 282; People ex rel. Durand-Ruel v. Wells, 41 id. 144; affd., 92 App. Div. 622; People ex rel. Armstrong Cork Co. v. Barker, 157 N.Y. 159), I think the property must be regarded as having lost its distinctive character as an import and mixed with the mass of relator's property. (See Brown v. State of Maryland, 12 Wheat. 419.)
The writ should be dismissed.