
    (November 15, 1948.)
    In the Matter of National Cash Register Company, Appellant, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
   Order affirmed, with $20 costs and disbursements.

Peck, P. J., and Van Voorhis, J.

(dissenting). As respondent has opened the question of petitioner’s sales tax liability and determined a deficiency for past years, it seems to us that petitioner should be entitled to set off, against any deficiency finally determined, the amount of any overpayment of sales taxes made during the period under review, although petitioner did not file a timely refund claim. While the claim of respondent for a deficiency does not arise out of the same transactions as petitioner’s claim for recoupment, both claims relate to the same tax during the same period, and we think it would be no undue extension of the principle of recoupment, but only fair, to apply it in this case.

We dissent and vote to reverse and deny the motion.

Glennon, Dore and Cohn, JJ., concur in decision; Peck, P. J., and Van Voorhis, J., dissent and vote to reverse and deny the motion, in an opinion.

Order affirmed, with $20 costs and disbursements. No opinion.  