
    In the Matter of Harry Raker, Inc., et al., Appellants, v. Board of Representatives of the County of Dutchess et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    March 12, 1973.
    
      Siwek & Silberkleit (Warren B. Silberkleit of counsel), for appellants. Joseph D. Quinn, Jr., Special Counsel, for respondents.
   Per Curiam.

An overpayment of taxes based on a special assessment may not be recovered under subdivision 3 of section 556 of the Real Property Tax Law (Real Property Tax Law, § 102, subds. 15, 20; 55 N. Y. Jur., Special Assessments, § 3). In our opinion, petitioners should have sought recovery in a common-law action based on the theory of money had and received (2 Carmody-Wait 2d, New York Practice, Limitation of Actions, §§ 13:84,13:157; 44 N. Y. Jur., Payment, §§ 115,117; 55 N. Y. Jur., Special Assessments, § 424; Title Guar. & Trust Co. v. City of New York, 265 App. Div. 304, affd. 290 N. Y. 910; see Mercury Mach. Importing Corp. v. City of New York, 3 N Y 2d 418, 430; Jenad, Inc. v. Village of Scarsdale, 23 A D 2d 784, 786, revd. on other grounds 18 N Y 2d 78; 48 Am. Jur., Special or Local Assessments, § 226; Ann. 145 A. L. R. 1129; 55 N. Y. Jur., Special Assessments, § 398).

The order should be modified by providing that the dismissal of the petition is without prejudice to the institution of a plenary suit against respondents and, as so modified, affirmed without costs.

Concur — Hogan, P. J., McCullough and Farley, JJ.

Order modified, etc.  