Monroe v. Bates , 123 N.Y.S.2d 318 ( 1953 )

Appeal by petitioners from an order of the Supreme Court at Special Term, entered in Albany County on November 18, 1952, dismissing a proceeding brought pursuant to article 78 of the Civil Practice Act. Petitioners voluntarily paid an estate tax before any order was entered to obtain the discount under section 249-z of the Tax Law. On March 7, 1949, the Surrogate made an order fixing the tax on a percentage basis. The State concedes that the voluntary payment exceeded the amount in the order and that the tax was overpaid, entitling petitioners to a refund, if a timely application therefor was made. No application for a refund was made until January 29, 1952, and this was more than one year after the period provided in section 249-aa of the Tax Law. Subsequently a supplemental order was made by the Surrogate following a determination of the Federal tax, that no additional tax was due to the State. Petitioner’s sole contention is that the Statute of Limitations begins to run from the date of this supplemental order. The court below has written a memorandum which cites the statutes involved and court decisions in detail, and has concluded that the original order fixing the tax starts the period within which application for refund must be made. We agree with this decision and refer to the authorities cited therein. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [204 Misc. 23.] [See post, p. 847.]