46 N.Y.S. 48 | N.Y. App. Div. | 1897
The. assessments mentioned in the petition were illegal and unauthorized. (Trowbridge v. Horan, 78 N. Y. 439; In re Kenworthy’s Estate, 17 N. Y. Supp. 655 ; Cromwell v. McLean, 123 N. Y. 486.) In the last case cited similar assessments were declared to be “ clearly illegal.”
Section 16 of chapter 686 of the Laws of 1892 received construction in Matter of Buffalo Mutual Gas Light Co. (144 N. Y. 228), and the power of the County Court to direct the refunding of an illegal tax was asserted. In the opinion it was said : “ The power to refund taxes illegally or improperly assessed must necessarily carry with it power to inquire into the grounds upon which it is claimed they are illegal, and to determine for themselves whether they are illegal or not, at least in the first instance, so that it will be seen that thus far no power whatever has been conferred upon the county judge.”
In that opinion it was further said“ But the Legislature .antici- ■ pated the possibility that the board might neglect or refuse to ■ refund an illegal tax to the person who had paid it. In such cases ■ the board is required by the statute to cause, it to be refunded upon -the order of the county judge, and this is the only power which-the "statute has conferred upon that officer.” In that case the board had ■ not been requested to refund, and the tax had not been paid, and it •Was concluded in that case that'“not until an application, .for the -'purpose of having it refunded has been made to them, can the -county judge make any order on the subject.”
In the case in hand an application had been made to the board of. supervisors before the petition was presented to the County Court for an order requiring the repayment of the-tax alleged to have "been illegally assessed. .' • ■
> The respondent relies. upon Tripler v. Mayor (125 N. Y. 617) and. asserts that that case authorized the County Court to hold that the tax in question had been voluntarily paid. In the Triyler case it appeared that the taxes were paid “ with full knowledge ” and before any attempt had been made to enforce payment; and, under such circumstances, the payment was not regarded as an involuntary one made under coercion in law. The case was subsequently, .'on a second appeal, referred - to in the opinion' delivered in Tripler v. Mayor (139 N. Y. 1), and after stating what was held in the case when first in the Court of Appeals, Andrews, Ch. J., said : “ But .the court further held that the imposition of the assessment and the published notice requiring payment, given by the city in 1.881,- did •not constitute coercion in fact so as to make the payment of" the-assessment in 1887 involuntary, no steps having been taken by thé city subsequent to the publication of the notice in 1881, to collect ■or enforce the assessment. The court further held that the mere .fact that the assessment was an apparent lien on the.plaintiff’s land -which might be followed by proceedings for its sale where the city had remained yasswe for six years, did not constitute coercion in law so as to make a payment made in 1887 for the purpose of clearing the title, involuntary, unless the payment was made in ignorance of the facts which made the assessment illegal.”
In Peyser v. Mayor (70 N. Y. 497) it appeared by the complaint that the defendants imposed arid put upon record what appeared to be “ and what defendants claimed was, an assessment on the plaintiff’s land, and that the same became and was an apparent lien and incumbrance thereon.” In that case an action was brought to recover hack moneys alleged to have been paid by reason of the alleged assessment, and' a recovery was upheld, holding that the payment was not voluntary.
In Bruecher v. Village of Port Chester (101 N. Y. 243) that case was referred to with approval. In that case it appeared that the plaintiff, tinding a warrant for the collection of an assessment upon his premises, and that the defendant threatened to sell and was about to sell his premises for the payment of the assessment, paid the taxes, and “ having before that time sold his premises and being under contract to convey the same free from all incumbrances, was unable to do so by reason of the assessment, which was an apparent lien and cloud upon the premises, and thus he ■ was compelled, in order to complete the conveyance of his premises, to pay and did pay to the treasurer.” In that case it was held that the payment by the plaintiff was not voluntary, and that the money was taken from the plaintiff wrongfully, and the defendant had no right to retain the same.
In Vanderbeck v. City of Rochester (122 N. Y. 285) when the payment was made no steps had been taken looking to a sale of the land, and a notice had been issued that interest would be charged after a given date if the assessment was not paid therefore, the plaintiff voluntarily paid the same. The case is quite distinguishable from the one in hand.
The case in hand is quite unlike Pooley v. City of Buffalo (122 N. Y. 602).
When the claim was before the hoard of supervisors, they put their denial upon the ground that “ the proper course in this case is to apply to the courts for relief.”
We think that the. County Court erred in refusing to grant the relief asked for, and that its order should he reversed and an order
The order of the County Court should be reversed,, with costs, and the .prayer of the petitioner granted directing the board of supervisors of the county of Monroe to repay to him $287.07, with interest thereon from the 24th day of December, 1896, with costs of the appeal to the appellant.
All concurred.
Order of the County Court reversed,, with costs, and the prayer of the petitioner granted directing the board of supervisors of the coiinty of Monroe to pay tó him $287.07, with interest thereon from the 24th day of December, 1896, with costs of the appeal to the appellant.
