
    Fifth Avenue Coach Company, Claimant, v. The State of New York.
    No. 10535.
    (State of New York, Court of Claims,
    September, 1911.)
    Payment — Recovery back of payments — Payments to municipal corporation or governmental agency.
    States — Claims: Court of Claims — Jurisdiction: Liability of State in general.
    Where the Secretary of State demanded fees for the registration of certain motor vehicles in excess of the fees prescribed by law, and the owner paid such excessive fees into the State treasury, under protest, to secure the registration of the vehicles, and filed a claim against the State. for such excess, held:
    The claim was not required by law to be submitted to any other tribunal or officer than the Court of Claims for audit or determination and said court has jurisdiction thereof.
    The payment of the excess over the legal fees was not voluntary and it may be recovered.
    This claim is for the refund .of excess registration fees, which claimant, a corporation organized and existing under the laws of the State of Few York, was compelled to pay-under protest on registering eighty double-deck automobile stages, operated by the claimant in..passenger transportation service in Few York city, F. Y.
    The claimant, on or about July 28, *1910, made application to the Secretary of State, on blanks furnished by the Secretary for the registration, for the period from August 1, 1910, to February 1, 1911, under chapter 374 of the Laws of 1910, of sixty-one double-deck automobile stages operated in its passenger service.
    The claimant asserted that the stages were motor vehicles, used solely for commercial purposes, and that the registration fee for the mentioned period should be under said act at the rate of $2.50 per stage, and in the aggregate sum of $152.50.
    The Secretary of State refused to receive the fees on the ground that the stages, though engaged exclusively in passenger service, were not motor vehicles used solely for commercial purposes.
    Thereupon claimant paid under protest to the Secretary of State, as the registration fees of sixty-one automobile stages, the sum of $302, the claimant having previously paid $2.50 on account.
    Subsequently mandamus proceedings were instituted in which it was determined that the position taken by the claimant was correct and that excess fees had been paid by it; whereupon this claim was filed for an award for such excess.
    Page, Crawford & Tuska, for claimant.
    Edward B. O’Halley, D. E. Brong and H. H. Quirk, for State.
   Bodenbeck, J.

The jurisdiction of the court to entertain this claim is the only question presented. The claimant paid excess registration fees, the State has the money and ought to refund it. The legality of the excess fees required to be paid has been passed upon by the Appellate Division of the third department, and the only question presented here is whether or not this court has jurisdiction to render an award for such excess.

This court has jurisdiction of “ private claims.” The term “private” is-used as the antithesis of “public.” Cayuga County Supervisors v. State, 153 N. Y. 279. The claim here urged is clearly not a public claim but is a claim made by a corporation against the State for the refund of moneys which the State illegally retains.

This jurisdiction of the court, however, has an exception. The statute provides that it shall have no jurisdiction where the claim is required to be submitted by law to any other tribunal or officer for audit Or determination, except where the claim is founded upon contract, express or implied. A tax is not based upon contract but is an enforced contribution for support of government. Cooley Tax. (3d ed.), p. 19.

The court, therefore, has jurisdiction, unless the claim is required to he submitted by law to another tribunal or officer for audit, or determination. The only .provision of law to which reference has been made on this proposition is subdivision 5, section 4 of the State Finance Law, authorizing the Comptroller to refund moneys paid into the treasury through mistake; but this authority is subject to the exception that it shall not apply to payments on account of . taxes.

The court, therefore, has jurisdiction and can make an award, provided a recovery under the state of facts which exists here could be had against an individual or corporation in any other court. The statute conferring jurisdiction upon the court provides that there shall be no liability in any case except upon such legal evidence as would establish a liability against an individual or corporation in a court of law or equity. Code Civ. Pro., § 264. The facts which exist in this controversy could, of course, not arise between individuals; but similar facts involving taxes might arise between corporations, such as a private and a municipal corporation, or between an individual and a municipal corporation. In such a controversy, under a similar state of facts, a recovery could be had. TJnlike the claim of Flower v. State, wherein there was a mutual mistake of law and the payment of the tax was voluntary, the payment here was made under protest -and under such circumstances as to amount to an involuntary payment. This claimant disputed the right of the State to exact the taxes and successfully litigated the question in the courts, after paying the taxes under protest.

In order to protect its rights, it was not necessary for it actually to cease operating its vehicles or to subject itself to the penalties provided for in the statute. An action may be x maintained to recover an illegal tax paid,’where the tax is • void and the payment involuntary, which is the case where the payment is made through coercion of law or of fact. Newman v. Supervisors of Livingston County, 45 N. Y. 676; National Bank of Chemung v. City of Elmira, 53 id. 59; Peyser v. Mayor, 70 id. 497; Bruecher v. Village of Port Chester, 101 id. 240; Dale v. City of New York, 71 App. Div. 231.

The claim, being one which would be recoverable in the ordinary courts, were it a controversy between an individual or private corporation and a municipal corporation, and this court having jurisdiction thereof, the claimant is entitled to-recover the sum of $247.50, with interest from the date of payment.

Judgment accordingly.  