The opinion
Rhodes, J. (dissenting).
The original debentures secured by the original mortgage have been exchanged for new debentures secured by another mortgage, which is the mortgage in question. The holders of the original debentures exchanged them for the new debentures of a third party, a new corporation. Certainly new elements of consideration entered into the making and delivery of the new debentures. It seems to me that the transaction con *662 stituted a novation, and thus the mortgage in question given to secure the new debentures was a new mortgage and not exempt under section 255 of the Tax Law. (People ex rel. Williamsburgh Savings Bank v. State Tax Commission, 245 N. Y. 414 .)
Moreover, the exemption of section 252 of the Tax Law relative to mortgages given as part of reorganization under section 77B of the Bankruptcy Act does not seem to apply. The said amendment became effective May 1, 1936. Probably no one would contend that a mortgage tax paid on such a mortgage before the amendment became operative could be refunded; in fact, under the Constitution, the Legislature would have no authority to authorize such a refund of moneys lawfully paid into the treasury.
In this case the only difference is that the tax was not paid, though the mortgage was recorded and the Commission had assessed the tax prior to the taking effect of the amendment; thus the tax had become a fixed liability before the amendment became operative.
The determination should be confirmed.
Crapser, J., concurs.
Determination annulled, with fifty dollars costs and disbursements.