In Matter of 339 Central Park West, Inc., v. Graves (284 N.Y. 691) we held that petitioner was not a *Page 358 utility in the sense of section 186-a of the Tax Law (L. 1937, ch. 321, as amd.) and, consequently, was not liable for the tax sought to be imposed under that section of the Tax Law upon a vendor of electricity to the tenants of its building. There is nothing in the underlying decisive facts in that case which distinguishes it from those in the case at bar.
By an amendment to that section as it existed in 1938 the Legislature, in 1941 (L. 1941, ch. 137), attempted to enlarge its definition of "utility" to embrace within the class subject to the incidence of the tax those sub-metering electricity and to apply it to that class retroactively to the date of the enactment of the original law in 1937 imposing the emergency tax on the furnishing of utility services.
The provision of the amendment by which attempt is made to apply the tax retroactively is unreasonable, arbitrary, capricious and unjust in violation of the due process clauses of the State and Federal Constitutions (People ex rel. Beck v.Graves, 280 N.Y. 405). The attempt to include all vendors of electricity by mere definition within the class subject to the tax without regard to the fact that the intent and purpose of the act is to tax public utilities only cannot succeed (Matter of339 Central Park West, Inc., v. Graves, supra).
The order should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN and FINCH, JJ., concur with DESMOND, J.; RIPPEY, J., dissents in opinion in which LEWIS and CONWAY, JJ., concur.
Ordered accordingly. *Page 359