59 A.D.2d 1038 | N.Y. App. Div. | 1977
Order unanimously affirmed, without costs, Goldman, J., not participating. Memorandum: This appeal involves an attempt by a taxpayer of the City of Buffalo, Arthur Pellnat, to recover $112.10 which he paid to the City of Buffalo under protest after our decision in Hurd v City of Buffalo (41 AD2d 402) on May 18, 1973 but before its affirmance by the Court of Appeals (34 NY2d 628) on March 27, 1974. Pellnat brought an action against the city in the City Court of Buffalo and recovered a judgment in the amount claimed. On appeal to the County Court of Erie County, judgment was reversed. Plaintiff appeals from that order, claiming that he is entitled to recover that portion of his 1973 real property tax which was finally held, in 1974, to be unconstitutional as beyond the city’s taxing limitation. Each of the parties relies on this court’s opinion in Hurd. The City of Buffalo relies on nonretroactivity language therein as follows: "The city administration relied upon the statute in preparing its budget and to mandate repayment of amounts illegally collected in the past would place an impossible burden upon it” (p 406). The taxpayer relies on language therein which declares section 11.00 of the Local Finance Law unconstitutional "insofar as it excludes the City of Buffalo’s future annual requirement for pension and retirement liabilities from the tax limit” (p 406). The payment in question falls on a middle ground. A review of the principles set forth in Lemon v Kurtzman (411 US 192), relied on for the nonretroactivity doctrine in Hurd, is helpful. The Supreme Court there noted that: "The