
    The People of the State of New York ex rel. Tinton Building Corporation, Appellant, v. James V. Ganly, as Clerk of Bronx County, Respondent.
    First Department,
    March 12, 1915.
    Judgment — transcript of judgment — Federal stamp tax.
    The county clerk of Bronx county should not refuse to file a transcript of a judgment of the Municipal Court of the city of New York on the sole ground that the stamp required by section 5, Schedule A, of the Federal Revenue Act has not been affixed thereto. The transcript of such judgment does not come within the provisions of the act and the stamp is not required.
    Appeal by the relator, Tinton Building Corporation, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 13th day of January, 1915, denying its motion for a peremptory writ of mandamus.
    
      George D. Carrington, for the appellant.
    No appearance for the respondent.
   Per Curiam :

This appeal is from an order denying a motion for a writ of mandamus directing the clerk of Bronx county to receive and file in his office a transcript of judgment issued out of the Municipal Court of the City of New York. The transcript was correct in form and the respondent refused to receive or file the same solely on the ground that the ten cent-stamp required by section 5, Schedule A, of the United States Revenue Act of October 22, 1914 (38 U. S. Stat. at Large, 753, 761), in effect on and after December 1, 1914, had not been affixed thereto and canceled.

We are of the opinion that the transcript of the judgment referred to does not come within the provisions of the act, and, therefore, a stamp tax is not required to be affixed thereto and canceled before the same can be filed in the county clerk’s office. Such transcript is a necessary part of a court proceeding and its filing in the county clerk’s office is a step to effectuate and enforce the judgment in the county of Bronx.

The construction thus given to the statute is the one placed upon by it by the collector of the fourteenth district of New York (See N. Y. L. J., Feb. 6, 1915), also by the Commissioner of Internal Revenue. (See circular, December 11, 1914, T. D. 2087; T. D. Dec. 17, 1914, vol. 27, No. 25, p. 21.) This, however, was not the position taken by the relator at the time the transcript was presented to the respondent. It then conceded, as it does in the brief presented on this appeal, that the transcript was a certificate within the meaning of the Federal act, but that act, in so far as it required a stamp to be affixed and canceled upon such certificate, was unconstitutional.

Under such circumstances, while we think the order should be reversed and the motion granted, it should be without costs.

The order appealed from, therefore, is reversed and the motion granted, without costs to either party.

Present —Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed and motion granted, without costs. 
      
      See 38 U. S. Stat. at Large, 764, § 24.— [Rep.
     