
    E. P. Lawson Co., Inc., Appellant, v. Rollin Browne et al., Constituting the State Tax Commission, Respondents.
    First Department,
    May 21, 1943.
    
      Edward B. Schulkind of counsel (Irving M. Marón with him on the brief; Schulkind & Marón, attorneys), for appellant.
    
      John P. Powers of counsel (Orrin G. Judd and William F. McNulty with him on the brief; Nathaniel L. Goldstein, Attorney-General, for respondents.
   Per Curiam.

The action is for a declaratory judgment by a resident of New York County asking construction of Tax Law, section 214-a, and only in connection with final relief, for an order restraining defendants from levying the tax. Civil Practice Act, section 879, was not relied on in the notice of motion and it has no application as it relates to temporary and not final injunctions incidental to other relief as to which the Supreme Court has inherent power. The action is not one against a public officer for an official act or omission within the meaning of subdivision 2 of section 184 of the Civil Practice Act. The transactions took place in the county of New York. Considered as a motion under section 187 of the Civil Practice Act the motion should be denied as the moving papers fail to set forth the names of the witnesses or the relevancy of their testimony.

The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion in all respects denied.

Martin, P. J., Dore and Caldahan, JJ., concur; Townley and Untermyer, JJ., dissent and vote to affirm.

Order reversed, with twenty dollars costs and disbursements, and motion denied.  