Opinion
December 22, 1953.
Appeal from Supreme Court, Schenectady County.
The complaint seeks judgment declaring and determining that the constitutional tax limit of the defendant school district is 1 1/4% of the average full valuation of the taxable real property; declaring unconstitutional a portion of subdivision 1 of section 2701 Educ. of the Education Law, and restraining the defendant from adopting a budget requiring a tax levy in excess of 1 1/4% unless and until certain alleged constitutional requirements have been met. Appellant contends that the cause of action alleged in the complaint is in reality a taxpayer's action under section 51 Gen. Mun. of the General Municipal Law and that such an action will not lie against a board of education because it is not a municipal corporation within the purview of that statute. ( Schnepel v. Board of Educ. of City of Rochester, 302 N.Y. 94.) While the complaint contains many allegations usually found in a taxpayer's action, it does not necessarily follow that it must be construed as that type of action to the exclusion of any other type. The complaint adequately alleges a controversy between the parties as to the constitutionality of its taxing procedures and seeks a declaratory judgment to determine uncertain legal relations between the parties. There could be no doubt that such an action for a declaratory judgment may be maintained, and that the Supreme Court has power to entertain jurisdiction thereof. (Civ. Prac. Act, § 473.) The portions of the answer which were stricken out either relate to the complaint if it be treated as a taxpayer's action, or are mere unnecessary conclusions. Order affirmed, with $10 costs. Foster, P.J., Bergan, Coon and Halpern, JJ., concur; Imrie, J., taking no part.