Harder's Express, Inc. v. State Tax Commission

Herlihy, J. (dissenting). Upon the present record there can be no doubt that the cigarettes were in New York for the purpose of being used. The petitioner obtained possession in Albany, New York, on December 14, 1973 and the delivery was to be in New York. We are not involved with either interstate or foreign commerce and the restrictions on taxing items in regard to such commerce (cf. Ammex Warehouse Co. v Procaccino, 85 Misc 2d 327, affd 55 AD2d 535). I agree with the majority that the cigarettes were not possessed by the petitioner for sale within the meaning of section 471 of the Tax Law…