Opinion
09-26-1952
Saul Tonkelson et al., Doing Business as Kelson Liquors, Suing on Behalf of Themselves and All Other Licensees in the City of New York, Similarly Situated, Plaintiffs, v. City of New York et al., Defendants.
Denis M. Hurley, Corporation Counsel (Stanley Buchsbaum and Morris L. Heath of counsel), for defendants.
Lester H. Schreiber and Solomon H. Friesner for plaintiffs. Denis M. Hurley, Corporation Counsel (Stanley Buchsbaum and Morris L. Heath of counsel), for defendants. HECHT, J. All the attacks made by the plaintiff upon Local Law No. 58 for 1952 have already, with one exception, been overruled in three decisions by justices of this court (Steuben Restaurants v. City of New York, 202 Misc. 22; Linehan-Leary Corp. v. City of New York, 202 Misc. 25; O'Gara v. Joseph, 202 Misc. 28). The only claim now made which has not been passed upon is that the law does not tax all those possessing the privilege of selling at retail, but only some of them, and that the statute thus denies the equal protection of the laws. It is well settled that the Legislature may resort to classification in imposing a tax and that the tax will be upheld if the classification is not arbitrary but rests upon a reasonable basis. In the court's opinion that is the case here. There are substantial differences between the types of situations in which the tax is imposed by the law and those in which the privilege of selling at retail has been permitted to go untaxed. There is insufficient basis for reaching the conclusion that the differences are not substantial enough to warrant a holding that the classification made by a local legislative body was unreasonable. The motion for temporary injunction is denied.