99 N.Y.S. 852 | N.Y. App. Div. | 1906
We need not discuss the question involved here at any length, as we think the Court of Appeals has recently determined the matter in an analogous case in favor of the contention of the relator. (Matter of O'Berry, 179 N. Y. 285.) That was a case arising under section 225 of the Tax Law (Laws of 1896,' chap. 908; as amd. by Laws of 1900, chap. 382, and Laws of 1901, chap. 173), providing for the refunding of a transfer tax erroneously paid. Such a tax was imposed upon a vested remainder and paid to the Comptroller. Subsequently the Court of Appeals held that a transfer tax upon remainders which had vested prior to the passage of the law taxing such interests was unconstitutional and void. (Matter of Pell, 171 N. Y. 48.) The surrogate thereupon reversed his original order and directed the Comptroller to refund the tax so paid, with interest, and the only question involved in that case was as to the liability of the State to pay interest under such circumstances. The statute referred to, which authorized and required the Comptroller to refund taxes improperly collected, made no provision for the payment of interest. The question was discussed at length by Judge O’Brien, who wrote the opinion in the Court of Appeals, and it was held that when the State became liable by statute to refund a tax paid, which was illegal or void, the right to interest follows without any express provision of law on the subject. It was also, held in the O'Berry case that a tax paid under a void law cannot be deemed a voluntary payment.
Judgment is, therefore, directed in favor of the plaintiff, with costs.
All concurred.
Judgment directed in favor of the plaintiff, with costs.
