The Comptroller, practically construing the local law, assessed plaintiff a small sum as a sales tax upon the transaction between plaintiff and defendant. If the transaction constitutes a sale, plaintiff, as vendor, has the right to recover from defendant, as vendee, the amount of the tax paid to the city. The word "sale" is defined in the local law as "any transfer of title orpossession or * * * license to use * * * in any manner or by any means whatsoever for a consideration, or any agreement therefor * * *."
For a consideration paid by defendant to plaintiff, an exclusive license to reproduce pictures painted by plaintiff was granted to defendant and these pictures were delivered into the custody of defendant for the purpose of reproducing them on the covers of defendant's magazines which are sold to the public.
The noun "possession" and the verb "to use" occurring in this statute must be given their usual meaning. They have no technical significance but are intended to be understood by persons of ordinary intelligence who buy and sell. The pictures were delivered to defendant and for sometime remained in its custody. The statute distinguishes between transfer of title and transfer of possession. After these chattels had been delivered into defendant's custody, they were in its possession and within its control for the limited purpose of making copies for defendant's magazines. Such copies were made and, in making them, defendant necessarily did use the originals. The statute also distinguishes between the words "use" and "consume." The verb "to use" means, according to Webster, "to employ," "to avail oneself of" and the lexicographer gives as an example, "an artist uses a model." If a model is used when an artist paints a picture, surely the original picture is also used when some one copies or reproduces it. In the language of the statute, these pictures were used "in any manner or by any means whatsoever." If defendant did not use them "in any *Page 353 manner or by any means whatsoever" what did it do with them?
In order to constitute a sale, the transaction does not, according to the statutory definition, require both a transfer of possession and a license to use. If either right be granted for a consideration, sale results.
The Appellate Division is correct in going so far at least as to decide that a license to use these pictures for the purpose of copying them and exhibiting the copies on the covers of magazines sold to the public is the thing that was sold by plaintiff to defendant.
CRANE, Ch. J., LEHMAN, LOUGHRAN and RIPPEY, JJ., concur with HUBBS, J.; O'BRIEN, J., dissents in opinion, in which FINCH, J., concurs.
Judgment accordingly.