Holmes Electric Protective Co. v. City of New York , 107 N.Y.S.2d 434 ( 1951 )

Dore, J.

(dissenting). Utility tax laws tax only utilities and sales of utility services. Efforts to impose such taxes on receipts from sales of nonutility services have been struck down by the courts (Matter of Holmes Elec. Protective Co. v. McGoldrick, 262 App. Div. 514, affd. 288 N. Y. 635; Matter of United Parcel Service of New York v. Joseph, 272 App. Div. 194, affd. 297 N. Y. 1004). On the record of the 1941 appeal and on this appeal, plaintiff is not a utility; it does not sell utility services; it sells a nonutility service, viz., protection against unlawful entry and burglary.

The 1938 amendment of the City Utility Tax Law does not lessen the controlling effect of the 1941 decision of this court and the Court of Appeals (Matter of Holmes Elec. Protective Co. v. McGoldrick, supra) or subject plaintiff’s receipts from its protective nonutility service to the utility tax law. The words “ telegraph service ” in the prior 1935 statute that was controlling in 1941, necessarily meant and was understood to mean the use of electric wires to transmit signals as clearly as if those words were in the statute. The additional words added nothing to what was in the prior statute by necessary implication and cannot make the law applicable to nonutility services.

Numerous other persons, concededly not taxed and not held to be taxable under the new law, equally use electric wires to transmit signals; the so-called “ literal ” construction of Special Term if equally enforced against such persons would lead to a reductio ad absurdum; as it is not so enforced, it is discriminatory against this plaintiff.

Taxing statutes are to be construed most strongly against the government and in favor of the taxpayer (Matter of Holmes Elec. Protective Co. v. McGoldrick, supra; Matter of Brooklyn Union Gas Co. v. McGoldrick, 270 App. Div. 186, 195, affd. 298 N. Y. 536; People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; Matter of Good Humor Corp. v. McGoldrick, 289 N. Y. 452; Gould v. Gould, 245 U. S. 151, 153; Matter of Vanderbilt, 281 N. Y. 297, 313).

Accordingly I dissent and vote to reverse the judgment appealed from and grant judgment in plaintiff’s favor for the relief prayed for.

Peck, P. J., Glennon, Callahan and Shientag, JJ., concur in decision; Dore, J., dissents and votes to reverse and grant judgment in plaintiff’s favor for the relief prayed for, in opinion.

Judgment affirmed, with costs. No opinion.