In re Kimball

196 A.D. 679, 188 N.Y.S. 97, 1921 N.Y. App. Div. LEXIS 5592

Opinion

Putnam, J.:

In our opinion the act of 1920 superseded the method of dividing income tax moneys under the statute of 1919, by its recognition of incorporated villages as entitled to a ratable share. That State moneys coming to the county after May tenth were to be distributed under this later act. When in October, 1919, the Comptroller’s future estimate became incorporated in the county budget, both his aggregate figure, and the method of town apportionment by dividing these credits, were necessarily provisional, being dependent on the law remaining unchanged. But after division and application of these funds to the Nassau towns, even if the distribution is not correct by reason of an over credit to Hempstead, as a town containing a village, the funds no longer are in the county treasury for payment a second time. The moneys have been applied to reduce taxation of the entire town, and it would be vain and fruitless to compel by mandamus a second payment of part of same proceeds to a constituent village of that town. Mandamus, therefore, is not the proper remedy. (People v. Supervisors of Greene, 12 Barb. 217; Public Service Commission v. International R. Co., 224 N. Y. 631.)

The present inequality could perhaps be redressed by future action of the supervisors, or may in other ways be properly remedied.

The order is, therefore, affirmed, but without costs

Blackmar, P. J., Mills, Kelly and Jaycox, JJ., concur.

Order affirmed, without costs.