(dissenting). I agree that, as these cases come to us, we may ignore the first complaint, and examine, as to sufficiency, the complaint in Action No. 2, only. I agree, too, that, for several reasons, the cause of action for an accounting, being the sixth count in Complaint No. 2, is inadequate.
However, Complaint No. 2 does include a sufficient cause of action for a declaratory judgment and a sufficient cause of action for an injunction. The basic ground asserted for relief is that defendant telephone company, with the at least passive acquiescence of defendant city, has been carrying on for five years and intends to continue an illegal practice of collecting from the telephone subscribers taxes concededly not owed by the latter. That the company has no present method of distinguishing between taxable and nontaxable messages, explains but does not justify the illegality. The telephone company acts as to these taxes as the city’s collecting agency only and holds as trustee for the city the tax moneys when collected as such (Administrative Code of City of New York, § N41-2.0; Matter of American Cyanamid & Chem. Corp. v. Joseph, 308 N. Y. 259; New York *268City Comptroller’s Sales Tax Regulations, art. 2). Nevertheless the company has matched and followed its unlawful acts o collecting taxes on nontaxahle telephone calls by an unlawfr assumption of the role of a court or an administrative tribunal i: refunding some of those taxes, at the company’s own will an through procedures formulated by it. The long and short o it is: when this company or anyone else collects money as an for such local taxes, the collector’s only duty or power is to tur the money over to the city. If there are to be refunds, th statute itself provides the procedure (Administrative Cod< § N41-8.0).
Declaratory judgment relief has been denied to plaintiff b the courts below, not in the exercise of discretion (see Rules Cr Prac., rule 212) but on the ground that there is no justiciabl dispute between plaintiff and either defendant. All partie agree that the collection of these New York City local taxes o telephone calls to extra-city points is forbidden by the applicah statute (L. 1934, ch. 873, subd. 1, as last amd. by L. 1952, ch. 232 But from that it does not follow that there is no dispute for tl courts to settle. Defendant telephone company, while admittin invalidity asserts necessity and tells us that there is no oth( way of charging for these calls, in the first instance, and that intends, therefore, to continue its present practices. Thus, justiciable controversy exists not as to whether Manhattai Westchester calls are taxable but as to whether defendant tel phone company may continue to force its subscribers to pay tax( not due and require those subscribers to submit to the company private procedures as to refunds. Whether or not the cour will in the end enter a declaratory judgment, and, if so, whs will be its terms, is not now before us on this motion to dismis the complaint for insufficiency.
Similar reasons require the validation of the injunction com in Complaint No. 2. We are told that resort should first be Ile to the Public Service Commission on the theory that plaintiff grievance is as to the adequacy of the company’s service, equi ment or practices (Public Service Law, § 97, subd. 2). Not s The wrong plaintiff alleges is the illegal collection by the publ utility of taxes not statutorily authorized. Kovarsky v. Brooklyn Union Gas Co. (279 N. Y. 304) established the rule in such situ tians that “ direct application for relief may be made to tl *269court ”. This is not a mere review of a Public Service Commission determination, since the commission, has never authorized this tax collection procedure. Whether an injunction is in the end to be granted must await a trial, but it will not do to put plaintiff out of court without a trial.
In the view I take, it is unnecessary to decide whether this is an individually-brought or representative-type action.
In Action No. 1, the judgment appealed from should be affirmed, without costs.
In Action No. 2, the judgment appealed from should be modified so as to provide for the dismissal of the sixth cause of action only, without costs.
In Action No. 1: Conwat, Ch. J., Desmond, Dye, Fuld and Van Voorhis, JJ., concur with Froessel, J.; Burke, J., taking no part.
In Action No. 2: Conway, Ch. J., Dye and Van Voorhis, JJ., concur with Froessel, J.; Desmond, J., dissents in an opinion in which Fuld, J., concurs; Burke, J., taking no part.
In Actions Nos. 1 and 2: Judgment affirmed.