Per Curiam.
The order assessing the tax should have been framed in compliance with section 241 of the Tax Law (Cons. Laws, ch. 60). Until it was so framed, the Comptroller was without authority to deposit any part of the tax in a trust company or savings bank to the credit of the estate. We do not now determine whether the appellant has a remedy by proceedings in the Court of Claims or whether additional legislation is necessary to make that remedy available. It is enough for present purposes to decide, as we do, that a successor Comptroller, the respondent in this proceeding, may not be compelled by mandamus to pay interest upon a fund which was never placed by his predecessor with a depositary where interest would be earned.
Upon the ground that mandamus will not lie, the order should be affirmed, without costs to either party.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O'BRIEN, JJ., concur; KELLOGG, J., not sitting.
Order affirmed, etc.