
    The People of the State of New York ex rel. Leslie A. Lummis, Relator, v. Mark Graves and Others, State Tax Commissioners, Constituting the State Tax Commission of the State of New York, Respondents.
    Third Department,
    July 2, 1937.
    
      
      Boyd & Holbrook [Arnold R. Boyd of counsel; William E. Mills, Jr., with him on the brief], for the relator. ,
    
      John J. Bennett, Jr., Attorney-General [Joseph M. Mesnig, Assistant Attorney-General, of counsel], for the respondents.
   Rhodes, J.

Relator, a resident of New Jersey, was employed on a commission basis as eastern sales agent for the General Glass Corporation of Ohio, his district including territory both within and without New York State. His only office was in New York city, where he maintained an office force. He also employed three salesmen on commission who, with himself, operated from said office; all salaries, commissions of his salesmen and expenses of the office being paid by him.

His duties were to solicit orders, all of which were subject to confirmation or rejection by the employer, such solicitations being made by personal calls on customers by himself and his salesmen. Payments for his commissions were by checks mailed by the corporation to him at his office.

His contention is that the income tax of this State should be levied only upon that portion of his commissions received upon orders for goods sold and shipped into the State of New York; that commissions received upon orders for merchandise sold and shipped elsewhere are not subject to such tax.

Sections 351 and 351-a of the Tax Law impose an income tax “ with respect to the entire net income * * *, from all property owned and from every business, trade, profession or occupation carried on in this State by natural persons not residents of the State.”

The Commission found that relator was carrying on a business within the State of New York and not elsewhere, and imposed a tax upon all the commissions received, whether for orders for goods to be shipped into New York State or elsewhere. (Matter of Cerf v. Lynch, 237 App. Div. 283; affd., 262 N. Y. 549; People ex rel. Whitney v. Graves, 271 id. 594. Cf. People ex rel. Troy v. Graves, 250 App. Div. 794.)

The determination should be confirmed, with fifty dollars costs and disbursements.

Hill, P. J., McNamee, Crapser and Bliss, JJ., concur.

Determination confirmed, with fifty dollars costs and disbursements.  