
    Third Department,
    March, 1926.
    Adelphi Homes Co., Inc., Plaintiff, v. State Tax Commission, Defendant.
    
      Submission of controversy — controversy may be submitted only if action might be brought — controversy cannot be submitted if subject of special proceeding — mortgages — mortgage tax — controversy relating to mortgage tax whether paid or unpaid cannot be submitted under Civil Practice Act, § 546 — if paid,, remedy is by application to State Tax Commission for refund under Tax Law, § 263, and certiorari if refund is denied — if tax has not been paid remedy is by action by Attorney-General in name of People under Tax Law, § 266.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 546 of the Civil Practice Act.
   Per Curiam.

The agreed facts upon which the controversy was submitted to the court, under section 546 of the Civil Practice Act, do not reveal whether or not the mortgage tax has been paid. A controversy may be submitted to the court under said section only if it might be the subject of an action. If it is the subject of a special proceeding the court has no jurisdiction to decide the controversy. (De Leyer v. Britt, 212 N. Y. 565.) If the plaintiff has paid the tax on this mortgage there is no authority for an action. The remedy of the plaintiff, in that event is to apply to the State Tax Commission for a refund under section 263 of the Tax Law, and if denied, to have that determination reviewed by certiorari. If the tax has not been paid the only remedy recognized by the statute is an action by the Attorney-General in the name of the People, under section 266 of the Tax Law, to sell the mortgage or to maintain an action against the mortgagee, or his assignee or successor in interest, personally. In such an action the parties in interest would be the People and the mortgagee. In the controversy submitted to us the parties represented are the mortgagor and the State Tax Commission. The submission should, therefore, be dismissed, without costs, and without prejudice. All concur. Submission of controversy dismissed, without costs, and without prejudice. 
      
      Amd. by Laws of 1916, chap. 336.— [Rep.
     
      
       Added by Laws of 1909, chap. 412, as amd. by Laws of 1916, chap. 323.— [Rep.
     