Cecere v. Geneva Enlarged City School District

• Decision Date: 13 November 1981
• Citation: 84 A.D.2d 913,449 N.Y.S.2d 452
• Parties: Stella CECERE, et al., Appellants, v. GENEVA ENLARGED CITY SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 452

449 N.Y.S.2d 452

84 A.D.2d 913

Stella CECERE, et al., Appellants, v. GENEVA ENLARGED CITY SCHOOL DISTRICT, Respondent.

Supreme Court of New York, Appellate Division,

Fourth Department.

November 13, 1981

Tyo & Schuppenhauer, Shortsville by John Schuppenhauer, Shortsville, for appellants. Bond & McDonald, Geneva by Albert Bond, Geneva, for respondent.

Order affirmed without costs.

All concur, CARDAMONE, J. P., not participating, except CALLAHAN, J., who dissents and votes to reverse the order and affirm the judgment of Geneva Small Claims Court, in the following

Memorandum:

I must respectfully disagree with the majority. As I view it, the rationale of the Court of Appeals, expressed in the Bethlehem Steel, Jones and Waldert cases (44 N.Y.2d 831, 406 N.Y.S.2d 752, 378 N.E.2d 115), which in each instance declared taxing statutes unconstitutional and ordered overpayments, where made, restored to the taxpayers, applies herein. The Geneva Enlarged City School District cannot validly claim lack of notice where a taxpayer pays taxes "under protest". Such payment is actual notice that patent circumvention of constitutional limitations on their taxing powers would not be tolerated. It has long been recognized and established that where protest has been interposed, the school district is notified that it may be obliged to refund the taxes and is required to meet that contingency (Mercury Machine Importing v. City of New York, 3 N.Y.2d 418, 426, 165 N.Y.S.2d 517, 144 N.E.2d 400; 43 N.Y.Jur., Payment, § 82). Therefore, those taxpayers who paid their taxes "under protest" are legally entitled to a refund (Angelone v. City of Rochester, 72 A.D.2d 445, 424 N.Y.S.2d 933, affd. 52 N.Y.2d 982, 438 N.Y.S.2d 287, 420 N.E.2d 85). (Appeal from Order of Ontario County Court, Reed, J.--Refund of School Taxes Paid Under Protest--Notice of Claim.)