dissenting: We are with deference compelled to depart from the majority opinion, since it seems to us this proceeding should have been decided in favor of petitioners on the authority of Garden Homes Co. v. Commissioner, 64 Fed. (2d) 593, which we are unable to distinguish. Discussion of the first point decided by the majority would then have been unnecessary. In view of the explicit legislative findings not only of the State of New York, but more recently of the United States (U. S. Housing Act of 1937, sec. 1, 50 Stat. 888), and of the underlying factual basis which is a matter of public record, *830we prefer not to treat the first part of the majority opinion as concluding that the construction and operation of housing for families of low income is not a governmental function. There may well be grounds for disposing of the constitutional issue not apparent in the majority opinion, and proceedings arising in the future will perhaps require their consideration. But, in view of our belief that the proceeding before us should have been determined as a matter of statutory construction, we are of the opinion that discussion of the constitutional question was superfluous.
Keen agrees with this dissent.