
    Martinus Anderson, Plaintiff, v. The City of New York and Joseph D. McGoldrick, as Comptroller of the City of New York, Defendants. Pagano, Inc., Plaintiff, v. The City of New York and Joseph D. McGoldrick, as Comptroller of the City of New York, Defendants.
    Supreme Court, Special Term, New York County,
    September 26, 1939.
   Mr. Justice Frankenthaler, who wrote the opinion in the above cases (172 Misc. 370), to the effect that the plaintiffs, commercial photographers and illustrators, were not subject to the New York city sales tax, died before signing formal decisions.

Mr. Justice Rosenman denied plaintiffs’ motion for judgment on Mr. Justice Frankenthaler’s opinion and granted defendants’ motion setting the cases down for retrial. Mr. Justice Rosenman in his decision (N. Y. L. J. Mar. 18, 1940, p. 1076) stated: “ The memorandum initialed by the late Justice Frankenthaler was a legal opinion and not a decision.” The order of Mr. Justice Rosenman was affirmed by the Appellate Division (260 App. Div. 1000).

Mr. Justice Rosenman on submission of the above cases to him for determination on the original records, pursuant to designation by an order of the Appellate Division, rendered ■ a decision and judgment holding the plaintiffs subject to the New York city sales tax. (N. Y. L. J. June 5,1941, p. 2528.) His first three conclusions of law are as follows:

First. The plaintiff transfers title to the photographs he produces to his customers, and by reason thereof, is subject to the New York City Sales Tax Laws upon such transactions.

Second. The plaintiff transfers possession of the photographs he produces to his customers, and by reason thereof, is subject to the New York City Sales Tax Laws upon such transactions.

Third. The plaintiff transfers possession of the photographs he produces to his customers, together with a license to use or consume the same, and by reason thereof, is subject to the New York City Sales Tax Laws upon such transactions.”  