The contract involved in the case at bar admittedly was made in New York for delivery in New York of a standard kind of oil procurable in the open market in New York or elsewhere, at an open market price. While customarily coming from New Jersey, it is admitted that in some instances the seller has resold oil which, pursuant to its rights under the contract, it had purchased in New York. When sold and delivered in this State, the fact that it may be used thereafter in foreign commerce does not prevent it from being taxable as a sale here. (Edelman v.Boeing Air Transport, Inc., 289 U.S. 249.) In addition, since no burden is laid on interstate commerce as such, and no other or different burden than if deliveries had been made by intrastate transportation in New York, the tax is a non-discriminatory one and cannot in any view constitute an undue burden on interstate commerce. (Wiloil Corp. v. Pennsylvania, 294 U.S. 169.)
The order appealed from should be reversed and the determination of the Comptroller reinstated.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur with CRANE, Ch. J.; FINCH, J., dissents in opinion.
Order affirmed. *Page 200