
    LaFayette Central School District, Respondent-Appellant, v Niagara Mohawk Power Corporation, Appellant-Respondent, and Town of Onondaga et al., Respondents.
   Judgment unanimously affirmed, without costs. Memorandum: We affirm for reasons stated in the memorandum decision at Special Term (Lynch, J.). We add that, insofar as respondent Niagara Mohawk’s counterclaim for a refund of taxes paid for the tax year 1982-1983 may be considered a plenary action for money had and received, it fails to state a cause of action. Payment under protest, which is an essential element of such an action, is not alleged (see, City of Rochester v Chiarella, 86 AD2d 110, 113-114, affd 58 NY2d 316, cert denied sub nom. Quality Packaging Corp. v City of Rochester, 464 US 828). (Appeals from judgment of the Supreme Court, Onondaga County, Lynch, J. — art 78; declaratory judgment.) Present— Dillon, P. J., Boomer, Green, Pine and Lawton, JJ.  