(dissenting). The cartons containing petitioner’s soap sold to the retail grocers and druggists were not sold for resale and petitioner, as vendor, should have collected the tax. In my opinion too, the cartons were not consumed by the vendor when it used them for shipping the soap to its customers. Obviously, if any of the packages were returned by the druggists or grocers, e.g\, who found they had ordered too many, the cartons in question would not have been “ consumed ” in the delivery to the retailer. In addition there is no proof that some third party made the cartons and sold them to the petitioner. It may well be that a soap manufacturer of this magnitude would make its own cartons and obviously would not owe a tax as vendee for cartons that it never purchased from any*60body else. In this case the resale certificate did not specify the cartons used for shipping and is not here controlling.
Accordingly, I dissent and vote to confirm the comptroller’s determination, with costs.
Peck, P. J., Callahan and Bastow, JJ., concur with Breitel, J.; Dore, J., dissents and votes to confirm determination, with costs in opinion.
Determination annulled, without costs.