Opinion
June, 1926.
Order granting summary judgment and judgment entered thereon affirmed, with costs. From the invoices prepared by the defendant and delivered to the plaintiff and from the correspondence between the parties, we think the money sought to be recovered in this action was paid to the defendant as duty upon the merchandise purchased, imposed by the government; that in paying such duty, the defendant used the plaintiff's money paid to it for that purpose. ( Friend v. Rosenwald, 124 App. Div. 226; Solomon Tobacco Co. v. Cohen, 184 N.Y. 308.) Kelly, P.J., Manning, Young and Kapper, JJ., concur; Lazansky, J., dissents and votes to reverse on the ground that upon the record a question of fact is to be determined as to whether the tax was a part of the price, or whether the parties had agreed that the tax was to be remitted to the plaintiff if the defendant should procure the return thereof from the government.