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MATTER OF RAKER, INC. v. BD. OF REPRESENTATIVES OF COUNTY OF DUTCHESS

74 Misc.2d 708 (1973)

In the Matter of Harry Raker, Inc., et al., Appellants, v. Board of Representatives of the County of Dutchess et al., Respondents.

Supreme Court, Appellate Term, Second Department.

March 12, 1973

Attorney(s) appearing for the Case

Siwek & Silberkleit (Warren B. Silberkleit of counsel), for appellants. Joseph D. Quinn, Jr., Special Counsel, for respondents.

Concur — HOGAN, P. J., McCULLOUGH and FARLEY, JJ.

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...

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