
    The People of the State of New York ex rel. Henry W. Robinson, Frederick C. Schroeder and George Edburg, Individually and as Copartners Doing Business under the Firm Name and Style of H. W. Robinson and Company, Relators, v. Mark Graves and Others, as and Constituting the State Tax Commission of the State of New York, Respondents.
   This is a review under article 78 of the Civil Practice Act of a final determination of the State Tax Commission which affirmed an assessment of unincorporated business tax against relators under article 16-A of the Tax Law for the year 1935. The only question here is whether relators’ partnership gross income from their occupation as custom house brokers to the extent of at least eighty per cent was derived from their personal services rendered in the practice of a profession of which capital was not a material income-producing factor. During the year 1935 relators were partners. The firm was engaged in business as custom house brokers and their three partners were licensed brokers. The relator Robinson was licensed as a custom house broker prior to 1922 and was, therefore, entitled to practice before the Treasury Department or Customs Court. On the authority of People ex rel. Tower v. State Tax Commission (282 N. Y. 407) we conclude that relators were engaged in the conduct of a business subject to the application of the tax. Although the facts in this case are not fully identical with those in the case cited, we think that if a change is to be made it should be done by the Court of Appeals. Determination of the State Tax Commission unanimously confirmed, "with fifty dollars costs and disbursements. Present — Hill, P. J., Bliss, Heffernan, Sehenck and Foster, JJ.  