MATTER OF HARRY RAKER v. BOARD OF REPRESENTATIVES

Per Curiam.

An overpayment of taxes based on a special assessment may not be recovered under subdivision 3 of section 556 Real Prop. Tax 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; 44 N.Y. Jur., Payment, §§ 115, 117; 55 N.Y. Jur., Special Assessments, § 424; Title Guar. Trust Co. v. City of New York, 265 App. Div. 304, affd. 290 N.Y. 910; see Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d 418, 430; Jenad, Inc. v. Village of Scarsdale, 23 A.D.2d 784, 786, revd. on other grounds 18 N.Y.2d 78; 48 Am. Jur., Special or Local Assessments, § 226; Ann. 145 A.L.R. 1129; 55 N.Y. Jur., Special Assessments, § 398).

The order should be modified by providing that the dismissal of the petition is without prejudice to the institution of a plenary suit against respondents and, as so modified, affirmed without costs.

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

Order modified, etc.