Both parties to this appeal assume that if the payments were “ voluntarily ” made by the respondent, they are not recoverable at law. The majority opinion holds that this respondent is in the same situation as the plaintiffs in Five Boro Elec. Contrs. Assn. v. City of New York (12 N Y 2d 146) in that the respondent had to pay the license fees in order to stay in business. That decision does not govern the present situation. In Five Boro, the original action brought to declare the fees excessive and illegal was commenced as a class action (Adlerstein v. City of New York, 6 N Y 2d 740) and perforce the parties seeking recovery had done something to prevent the exaction of such fees. As the court noted in Five Boro Elec. Contrs. Assn. v. City of New York (supra, pp. 149-150) “ Unless they [plaintiffs] had paid the excessive fees required for their *425licenses to do business they would have been prevented from earning a livelihood while that litigation was pending.” It is readily apparent that in that case the parties seeking recovery had in fact paid the fees involuntarily, which fact was witnessed by their proceeding to correct the situation through litigation.
In the ease of American Dist. Tel. Co. v. City of New York (213 App. Div. 578, affd. 243 N. Y. 565) the plaintiff had participated in the litigation which served as the basis for the recovery sought in that case. (See Holmes Elec. Protective Co. v. Williams, 181 App. Div. 687, revd. 228 N. Y. 407.) Again the fact of involuntariness was witnessed by resort to litigation.
In the present ease it is quite apparent that the respondent never considered the fees unjust or illegal until it perceived the possibility of a windfall by virtue of the decision in Matter of Trans-Lux Distr. Corp. v. Board of Regents of Univ. of State of N. Y. (16 N Y 2d 710). From the present record it would appear that the complete lack of any attempt to avoid the license fees is sufficient to overcome what has been assumed to be a presumption of compulsion or duress (involuntariness) arising from the fact that the payment of such license fees was essential to the business of the respondent.
I would further disagree with the majority insofar as they find that the Statute of Limitations did not run until after the final decision in the Trans-Lux case. The respondent argues that it could not have had recovery in our Supreme Court because that tribunal lacks jurisdiction to direct a money judgment against the State and that it could not have tested the unconstitutionality of the statute involved in the Court of Claims because that court lacks equity jurisdiction. The rule is that “ The Statute of Limitations * * * does not commence to ■. run until the accrual of a legal right to relief * * * nor will it run or continue to run unless there exists a tribunal of competent jurisdiction to enforce the right ”. (Homer Eng. Co. v. State of New York, 12 N Y 2d 508, 510-511.)
Assuming, but not deciding, that the respondent was without relief in the Court of Claims, it appears that it had available means of redress which would have or could have resulted in full relief by commencing an action for declaratory judgment in the Supreme Court and in conjunction therewith invoking the provisional remedies available to it under the former Civil Practice Act to preserve the status quo of the parties pending the outcome of the litigation. Whether or not the status quo would have been preserved by the court is problematical, but the uncertainty in that regard exists because the respondent made no attempt to seek relief. Since the respondent did not *426file its notice of claim within six months of its last license fee payment, the claim should have been dismissed for failure to comply with subdivision 4 of section 10 of the Court of Claims Act.
Although it is not discussed in the majority opinion I would note that this claim is based on the theory that the decision of the Court of Appeals in Matter of Trans-Lux Distr. Corp. v. Board of Regents of Univ. of State of N. Y. (16 N Y 2d 710, supra) is a determination that all license fees paid and collected in connection with such statute were unlawfully collected. The majority would seem to refute that theory in the wording of its opinion stating: ‘ ‘ It was only as an incidental happening when the entire statute was struck down that the fee payments also were voided ’ ’. Upon examination of all of the opinions and memoranda written by the courts in the history of that case, none of them deemed the requirement of obtaining a license to be unconstitutional. The majority opinion of the Supreme Court in Freedman v. Maryland (380 U. S. 51, 58), which case was the basis for the declaration of unconstitutionality in Matter of Trans-Lux Distr. Corp. v. Board of Regents (380 U. S. 259), inferentially approves the requirement of licensing for motion pictures in advance of their showing. The case law and textbooks contain abundant authority for the proposition that reasonable fees may be exacted to help defray the administrative costs incurred in licensing. In view of the fact that the defect in the censorship statute here invoked was one of procedure in the manner and method of denying a license (see Education Law, § 122), it appears that a well-founded argument might be made that the declaration of unconstitutionality was prospective only ,in application as to the other sections contained in article 3 (part II) of the law. For example, section 123 with reference to certain types of films does not require ‘ ‘ inspection, permits or fees ”.
This petitioner, not a party to the Trans-Lux action, should not be allowed to be a “beneficiary” to an issue — “fees” pursuant to section 126—not argued or contested in that action.
For these reasons it appears that the fees were voluntarily paid and, therefore, the present claim should be dismissed for failure to state a cause of action.
Gibson, P. J., Reynolds, Atjlisi and Staley, Jr., JJ., concur in opinion per Reynolds, J; Herlihy, J., dissents and votes to reverse and dismiss in an opinion.
Order affirmed, with costs.