City of New York v. Tully

New York Court of Appeals

City of New York v. Tully

434 N.E.2d 250, 55 N.Y.2d 960, 449 N.Y.S.2d 181, 1982 N.Y. LEXIS 3144

CourtNew York Court of Appeals

DecidedFebruary 16, 1982

StatusPublished

Cited by1 cases

This text of 434 N.E.2d 250 (City of New York v. Tully) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Tully, 434 N.E.2d 250, 55 N.Y.2d 960, 449 N.Y.S.2d 181, 1982 N.Y. LEXIS 3144 (N.Y. 1982).

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Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission is reinstated.

We find no error in the determination of the State Tax Commission that the mortgage agreement in question was a supplemental mortgage within the purview of section 255 of the Tax Law and did not create a new or further indebtedness or obligation. The commission found that the agreement did not change the creditor, the maturity or interest rate, but instead it changed only the collateral. Hence, no additional mortgage tax was due upon the recording of this agreement. It is significant that the release of the leasehold from the lien did not occur before the fee was added to the security for the principal indebtedness. Additionally, we note that respondent taxpayer is not entitled to interest on its refund from the time of payment of the tax (Matter of Brodsky v Murphy, 25 NY2d 518).

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in a memorandum; Judge Jasen taking no part.

Judgment reversed, etc.

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OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission is reinstated.

We find no error in the determination of the State Tax Commission that the mortgage agreement in question was a supplemental mortgage within the purview of section 255 of the Tax Law and did not create a new or further indebtedness or obligation. The commission found that the agreement did not change the creditor, the maturity or interest rate, but instead it changed only the collateral. Hence, no additional mortgage tax was due upon the recording of this agreement. It is significant that the release of the leasehold from the lien did not occur before the fee was added to the security for the principal indebtedness. Additionally, we note that respondent taxpayer is not entitled to interest on its refund from the time of payment of the tax (Matter of Brodsky v Murphy, 25 NY2d 518).

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in a memorandum; Judge Jasen taking no part.

Judgment reversed, etc.

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Bluebook (online)

434 N.E.2d 250, 55 N.Y.2d 960, 449 N.Y.S.2d 181, 1982 N.Y. LEXIS 3144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-tully-ny-1982.

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