Hyperlawhypertext legal database People ex rel. Tinton Bldg. Corp. v. Ganly 152 N.Y.S. 67

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People ex rel. Tinton Bldg. Corp. v. Ganly

152 N.Y.S. 67 Court N.Y. App. Div. Decision date 1915-03-12 Docket No. 6883 English

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p. 67
PEOPLE ex rel. TINTON BLDG. CORPORATION v. GANLY, County Clerk.
(No. 6883.)
(Supreme Court, Appellate Division, First Department.
March 12, 1915.)

Headnote

Internal Revenue <©=»19—Stamp Tax—Transcript op Judgment.
A transcript of a judgment of the Municipal Court of the City of New York is not required to be stamped, etc., by Revenue Act U. S. Oct. 22, 1914, c. 331, § 5, 38 Stat. 753 , imposing a stamp tax on bonds, debentures, certificates of stock, and other matters and things, before the same can be filed by the county clerk.
[Ed. Note.—Eor other cases, see Internal Revenue, Cent. Dig. §§ 39-44; Dec. Dig. <®=19.]
p. 68
Appeal from Special Term, New York County.
Action by the People, on the relation of the Tinton Building Corporation, against James V. Ganly, as Clerk of Bronx County. Prom an order denying a motion for a writ of mandamus, plaintiff appeals. Reversed, and motion granted. ■
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
George D. Carrington, of New York City, for appellant.

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 10-cent stamp required by section 5, Schedule A, of the United States Revenue Act of October 22, 1914 ( 38 Stat. 753 , c. 331), 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 the Bronx.

The construction thus given to the statute is the one placed upon it by the collector of the Fourteenth district of New York (see New York Law Journal, Saturday, February 6, 1915); also by the Commissioner of Internal Revenue (see circular, December 11, 1914, T. D. 2087). This, however, was not the position taken by the relator at the time the transcript was presented to the respondent. He then conceded, as he 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.