Brodsky v. Murphy

Scileppi, J. (dissenting).

While I disagree with the majority’s conclusion that the substantive question is now properly before us, I will limit my discussion to the merits of that issue.

Although the question before us has not been often litigated in our State, this court’s decision in Matter of O’Berry (179 N. Y. 285) evidences that our State has adopted the view that a tax refunding statute silent as to interest carries with it a right to such interest.

In the O’Berry case, the court stated (p. 287) that “ the only question before us is whether the Comptroller, having received *524the money…