
    Dun & Bradstreet, Inc., Respondent, v. The City of New York, Frank J. Taylor, as Comptroller of the City of New York, and William Reid, as Collector of the City of New York, Appellants.
    First Department,
    May 7, 1937.
    
      Oscar S. Cox of counsel [Edmund B. Hennefeld and Sol Charles Levine with him on the brief; Paul Windels, Corporation Counsel, attorneys], for the appellants.
    
      
      William Greenough of counsel [Philip J. Dunn and Arthur J. O’Leary with him on the brief; Patterson, Eagle, Greenough & Day, attorneys], for the respondent.
   Per Curiam.

The order should be reversed and the motion denied without consideration of the question whether the New York city sales tax applies to the plaintiff’s business, upon the ground that the facts disclosed do not warrant an action for a declaratory judgment or injunctive relief. The local laws provide a special procedure for the assessment and review of the taxes imposed which in the absence of unusual and extraordinary circumstances ” (Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163; affd., 272 N. Y. 668) is the exclusive procedure to be followed (United States Trust Co. v. Mayor, etc., of New York, 144 N. Y. 488; First National Bank v. Weld County, 264 U. S. 450). The circumstances of the present case do not warrant disregard of that statutory procedure any more than in the case of every taxpayer who desires to contest his tax liability under the local law. The fact that the plaintiff’s failure to pay the tax might subject it to criminal prosecution does not entitle it to maintain such an action. (International Mutoscope Reel Co., Inc., v. Valentine, 247 App. Div. 130; affd., 271 N. Y. 622.) Any such danger can, moreover, be averted by payment of the tax under protest if it shall be assessed, and judicial review by certiorari.

The order should be reversed, with twenty dollars costs and disbursements, and the motion granted.

Present — Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.; Dore and Cohn, JJ., dissent and vote for affirmance.

Cohn, J. (dissenting).

I dissent and vote to affirm the order denying the motion to dismiss the complaint for legal insufficiency, on the ground that the facts are substantially similar to the facts held sufficient to warrant a declaratory judgment in the case of Socony-Vacuum Oil Co., Inc., v. City of New York (247 App. Div. 163; affd., 272 N. Y. 668). In view of the character of the tax involved, the invalidity of the regulation so far as it is assailed and the situation in which plaintiff finds itself, it would seem that the only practical remedy is an action which seeks a declaration of the law.

Dore, J., concurs.

Order reversed, with twenty dollars costs and disbursements, and motion granted.  