Harry Raker, Inc. v. Board of Representatives

Appellate Terms of the Supreme Court of New York

Harry Raker, Inc. v. Board of Representatives

74 Misc. 2d 708, 346 N.Y.S.2d 10, 1973 N.Y. Misc. LEXIS 2146

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 12, 1973

StatusPublished

Cited by2 cases

This text of 74 Misc. 2d 708 (Harry Raker, Inc. v. Board of Representatives) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harry Raker, Inc. v. Board of Representatives, 74 Misc. 2d 708, 346 N.Y.S.2d 10, 1973 N.Y. Misc. LEXIS 2146 (N.Y. Ct. App. 1973).

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Opinion

Per Curiam.

An overpayment of taxes based on a special assessment may not be recovered under subdivision 3 of section 556 of the Real Property Tax Law (Real Property Tax Law, § 102, subds. 15, 20; 55 N. Y. Jur., Special Assessments, § 3). In our opinion, petitioners should have sought recovery in a common-law action based on the theory of money had and received (2 Carmody-Wait 2d, New York Practice, Limitation of Actions, §§ 13:84,13:157; 44 N. Y. Jur., Payment, §§ 115,117; 55 N. Y. Jur., Special Assessments, § 424; Title Guar. & Trust Co. v. City of New York, 265 App. Div. 304, affd. 290 N. Y. 910; see Mercury Mach. Importing Corp. v. City of New York, 3 N Y 2d 418, 430; Jenad, Inc. v. Village of Scarsdale, 23 A D 2d 784, 786, revd. on other grounds 18 N Y 2d 78; 48 Am. Jur., Special or Local Assessments, § 226; Ann. 145 A. L. R. 1129; 55 N. Y. Jur., Special Assessments, § 398).

The order should be modified by providing that the dismissal of the petition is without prejudice to the institution of a plenary suit against respondents and, as so modified, affirmed without costs.

Concur — Hogan, P. J., McCullough and Farley, JJ.

Order modified, etc.

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Per Curiam.

An overpayment of taxes based on a special assessment may not be recovered under subdivision 3 of section 556 of the Real Property Tax Law (Real Property Tax Law, § 102, subds. 15, 20; 55 N. Y. Jur., Special Assessments, § 3). In our opinion, petitioners should have sought recovery in a common-law action based on the theory of money had and received (2 Carmody-Wait 2d, New York Practice, Limitation of Actions, §§ 13:84,13:157; 44 N. Y. Jur., Payment, §§ 115,117; 55 N. Y. Jur., Special Assessments, § 424; Title Guar. & Trust Co. v. City of New York, 265 App. Div. 304, affd. 290 N. Y. 910; see Mercury Mach. Importing Corp. v. City of New York, 3 N Y 2d 418, 430; Jenad, Inc. v. Village of Scarsdale, 23 A D 2d 784, 786, revd. on other grounds 18 N Y 2d 78; 48 Am. Jur., Special or Local Assessments, § 226; Ann. 145 A. L. R. 1129; 55 N. Y. Jur., Special Assessments, § 398).

The order should be modified by providing that the dismissal of the petition is without prejudice to the institution of a plenary suit against respondents and, as so modified, affirmed without costs.

Concur — Hogan, P. J., McCullough and Farley, JJ.

Order modified, etc.

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74 Misc. 2d 708, 346 N.Y.S.2d 10, 1973 N.Y. Misc. LEXIS 2146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-raker-inc-v-board-of-representatives-nyappterm-1973.

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