
    Saratoga Harness Racing, Inc., Appellant, v City of Saratoga Springs et al., Respondents.
    Argued June 6, 1978;
    decided July 6, 1978
    
      APPEARANCES OF COUNSEL
    
      Ernest B. Morris and David W. Morris for appellant.
    
      Thomas Nolan, Sr., for County of Saratoga, respondent.
    
      Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for New York State Tax Commission, respondent.
    
      Philip Stillman for Capital District Regional Off-Track Betting Corporation, respondent.
    
      Herbert J. Lustig, William Lerner and Neil J. Katz, for Finger Lakes Racing Association, Inc., amicus curiae.
    
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

For the reasons stated by Mr. Justice D. Vincent Cerrito at Special Term we agree that the reference in subdivision 1 of section 130 of the New York State Off-Track Pari-Mutuel Betting Law (L 1974, ch 139, § 3) to the conduct of off-track pari-mutuel betting "in such locality imposing the tax by a regional corporation, pursuant to this article” (emphasis added) refers only to the conduct of such betting by a regional off-track betting corporation in a county which has elected to become a member participating county of that regional offtrack betting corporation. In this action for a declaratory judgment plaintiff alleges in its complaint that the County of Saratoga is not a member of defendant Capital District Regional Off-Track Betting Corporation and that the City of Saratoga Springs is not eligible to become such a member. Accordingly it appears on the face of the complaint that plaintiff is not entitled to the benefits of subdivision 1 of section 130, and that the declaration to such effect at the Appellate Division was properly made.

In view of this disposition it is not necessary to consider the effect to be accorded, on the present motion to dismiss, to plaintiff’s allegation that defendant OTB Corporation "is conducting pari-mutuel betting and its business generally within the City of Saratoga Springs and the County of Saratoga”, or the proof tendered in the motion papers as to the activities allegedly conducted by defendant OTB Corporation in the County of Saratoga and the City of Saratoga Springs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  