In an action for the refund of business tax paid to the defendant, the latter moves for dismissal of the complaint, pursuant to subdivision 4 of rule 107 of the Rules of Civil Practice. This application rests upon a determination made December 9, 1954, by the comptroller of the City of New York denying plaintiff's claim for refund which the defendant contends supports a plea of res judicata in respect of the pending action.
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