The petitioner paid the tax imposed by the city of New York under Local Law No. 80 of 1940, amounting to five dollars and eighty-eight cents for August and September, 1940, under protest in writing, and brought this proceeding under *Page 352 article 78 of the Civil Practice Act to review the determination of the Comptroller, which denied petitioner's application for a refund. The Appellate Division unanimously confirmed, without opinion, the determination of the Comptroller, and petitioner comes here under subdivision 1 of section 588 of the Civil Practice Act upon constitutional grounds.
The petitioner in this proceeding is a domestic stock corporation and the owner of premises known as 436-440 West Thirty-fourth street, an apartment house located in the borough of Manhattan, and is engaged exclusively in the ownership and operation of those premises. Incidental to its ownership it supplies the tenants of the building with electric current which it purchases from the Consolidated Edison Company of New York, Inc., pursuant to a schedule of rates issued by that company with the approval of the Public Service Commission. Through a city-wide servicing organization, the Electric Meter Corporation, it submeters the electricity and separately bills each tenant for the amount he uses at the rates used by the Consolidated Edison Company for its retail sales. It thus makes a profit on the resale of the electricity. The billing is entirely separate from the rent or any other charges that may be made to the tenants. All of the electric wiring in connection with the service and the submeters belong to the petitioner and are located exclusively within petitioner's property. Concededly, the business so conducted is purely incidental to the real estate business of the petitioner. No use is made of the city streets and no permit is granted or required from the city or the State. The petitioner claims that it is not a vendor of public services, that it sells the electric current to its tenants as a private commodity and service distinct and separate from any utility characteristics. The petitioner is not subject in the conduct of its business to supervision by the Public Service Commission of the State or to supervision by any local department or agency, nor does it have the benefit of supervision of any such agency nor possess any of the advantages or characteristics of public utilities. Our decision here must be controlled by Matter of 320 West 37thStreet, Inc., v. McGoldrick (281 N.Y. 132) where the facts are identically parallel and by Matter of Merchants RefrigeratingCo. v. Taylor (275 N.Y. 113) where the applicable underlying principles stated are decisive. *Page 353
The tax here exacted was imposed under Local Law No. 80 of 1940 as specifically enacted to overcome, if possible, the effect of our decisions in the Taylor case and in Matter of 320 West37th Street, Inc. That law still defines "utility" as including "Every person subject to the supervision of either division of the department of public service." Here we have seen that this petitioner is not subject to the supervision thereof. That law defines the words "Vendor of utility services" as follows: "Every person not subject to the supervision of either division of the department of public service who furnishes or sells gas, electricity, steam, water, refrigeration, telephony and/or telegraphy, or furnishes or sells gas, electric, steam, water, refrigeration, telephone or telegraph service, or who operates omnibuses, (whether or not such operation is on the public streets); regardless of whether such furnishing, selling or operation constitutes the main activity of such person or is merely incidental thereto." It is asserted that it has specifically included this petitioner and others similarly situated within the class who must pay the tax by removing the limitation to those who are subject to the supervision of either division of the Department of Public Service and by the provision, at the end of the paragraph, which makes the vendor liable regardless of whether the furnishing of the electricity is its main activity or only incidental thereto.
The petitioner alleges and it is conceded by respondent that landlords renting space, power and light, and/or water, and/or steam, included at a fixed rental per month are not subject to the incidence of the tax specified in Local Law No. 80 of 1940. The mere fact that there has been added to the previous utility tax laws the provision that it is applicable to the vendor of electricity regardless of whether the sale constitutes its main activity or is merely incidental thereto does not change the principles which are decisive of the case at bar. Whatever else may be said, the tax is a utility tax, yet the services performed rest upon none of the attributes of a public utility business. The business of petitioner possesses none of the characteristics of other utilities. It is not subject to the protective features of the Public Service Law (Cons. Laws, ch. 48) nor is it under the supervision of public authority; it is not itself dependent for operation upon any public franchise and it possesses no advantages over general business which *Page 354 is exempt from the tax. Under identical circumstances we have held in the Taylor case (275 N.Y. 113) that a similar local law was unconstitutional. Taxes are not imposed upon fictions but only in reason (Matter of Vanderbilt, 281 N.Y. 297, 314).
Since by construction the Local Law cannot apply to the tax which it imposes or, if otherwise considered, it would be unconstitutional, the possibility that it averts double taxation or that it attempts to make a "vendor" as well as a distributor liable for the tax becomes immaterial.
The order appealed from should be reversed and the determination of the Comptroller annulled, with costs in all courts.
LEHMAN, Ch. J., LOUGHRAN and FINCH, JJ., concur with DESMOND, J.; RIPPEY, J., dissents in opinion in which LEWIS and CONWAY, JJ., concur.
Order affirmed.