
    Lawrence Reiss, Plaintiff, v. Lida M. Reiss, Defendant.
    Supreme Court, Special Term, New York County,
    December 18, 1945.
    
      David F. Cohen for defendant.
    
      Avel B. Silverman for plaintiff.
   Koch, J.

Motion by defendant for judgment on the pleadings and for summary judgment. Plaintiff sues for declaratory judgment declaring void a certain portion of an agreement between the parties hereto which so far as here material obligated the plaintiff to reimburse defendant for New York State income taxes payable by her on income derived by her under the agreement. Plaintiff contends that section 385 of the Tax Law renders that portion of the agreement void. Section 385 provides as follows: “ § 385. Contract to assume income tax illegal. It shall be unlawful for any person to agree or contract directly or indirectly to pay or assume or bear the burden of any tax payable by any taxpayer under the provisions of this article. Any such contract or agreement shall be null and void and shall not be enforced or given effect by any court.”

Insofar as the agreement obligated the plaintiff to reimburse defendant for New York State income taxes, it clearly constituted an agreement by him to assume or bear the burden ” of the income tax payable -by the defendant.

Such a controversy as here presented by the parties may be resolved by declaratory judgment.

It is no defense to assert that a prior action to recover reimbursement for taxes was decided in favor of defendant or that the parties placed a practical construction on the validity of the agreement by compliance therewith. Neither the court nor the parties may make lawful what the Legislature has declared to be unlawful.

The motion is accordingly denied.  