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Gulf Oil Corp. v. McGoldrick

282 N.Y. 622 Court N.Y. Decision date 1940-02-26 English

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p. 622
In the Matter of Gulf Oil Corporation, Appellant and Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent and Appellant.
Submitted February 26, 1940;
decided February 26, 1940.

Motion to amend remittitur granted. Return of remittitur requested, and when returned it will be amended by adding thereto, after the words “ and on no other grounds,” the following: “ and that (a) the petitioner-respondent-appellant, Gulf Oil Corporation, etc., on its appeal to this Court presented a federal question of deprivation of property without due process of law to this Court for decision, (b) that said question was presented in the briefs of petitioner-respondent-appellant, Gulf Oil Corporation, in both the Appellate Division and in this Court, (c) that a decision by this Court of such federal question was necessary to the determination of this particular issue because said petitioner-respondent-appellant claims still to be subject to liability to refund to its customers the illegal ‘ tax-on-tax ’ collected from them, and this Court’s decision herein requires said petitioner-respondent-appellant to pay the same sums with penalties to the City of New York, thus subjecting said petitioner-respondent-appellant to double payment of the same illegal tax and thereby depriving said petitioner-

p. 623
respondent-appellant of its property without due process of law, whereas this Court, following its decision in Kesbec v. McGoldrick ( 278 N. Y. 293 ), held that petitioner-respondent-appellant is not subject to double payment of said illegal tax because its deposit with the Comptroller of the moneys illegally collected absolved it from liability to its customers, the petitioner-respondent-appellant not being entitled to relief under the law of this State, and such federal question having been decided against said petitioner-respondent-appellant, and (d) that the appeal of Gulf Oil Corporation as to this Court was decided adversely to said Gulf Oil Corporation on federal grounds alone.” (See 281 N. Y. 647 ; 282 N. Y. 612 .)

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