
    In the Matter of the Application of Martha J. Smith, as Ancillary Executrix, etc., of Mary J. Smith, Deceased, Late of the Town of North Haven, County of New Haven, State of Connecticut, Appellant, for a Peremptory Mandamus Order against Michael F. Loughman, President of the State Tax Commission, and Others, State Tax Commissioners, Constituting the State Tax Commission of the State of New York, and Another, Respondents.
    
    Third Department,
    June 21, 1929.
    
      
      Herbert W. Smith [Joseph F. McCloy, John L. McMaster, Leo Brady and Edward H. Pattison of counsel], for the petitioner.
    
      Hamilton Ward, Attorney-General [Henry S. Manley, Assistant Attorney-General, of counsel], for the respondents.
    
      
      Affg. 132 Misc. 527.
    
   Per Curiam.

It is an essential element for relief by mandamus that the legal rights of the petitioner be clear. In this case the demand is that the Tax Commission be directed to refund the entire amount heretofore paid as the transfer tax on real property in this State formerly owned by Mary J. Smith, now deceased. This tax was fixed by an order of the State Tax Commission made on February 15, 1926. The decedent was a non-resident. The statute under which the tax was fixed (Tax Law, art. 10-A) was held to be unconstitutional. (Smith v. Loughman, 245 N. Y. 486.) The theory of the petitioner is that the estate now escapes all taxation. We do not take that sanguine view of the situation resulting from the abrogation of the first tax. (See Matter of Nash v. Lynch, 226 App. Div.-, decided herewith.) A tax yet to be fixed by the Tax Commission must be paid. If the tax as so fixed is less than the tax declared illegal, the balance must be refunded. (Laws of 1928, chap. 330, § 10.) The amount has not been determined, nor has there been refusal to make refund. The petitioner has not established her right to the peremptory mandamus order sought.

The order denying application should be affirmed, with ten dollars costs and disbursements.

Van Kirk, P. J., Hinman, Davis, Hill and Hasbrouck, JJ„, concur.

Order affirmed, with ten dollars costs and disbursements.  