57 N.Y.S. 448 | N.Y. App. Div. | 1899
Defendant, village of Lyons, contains the county -seat of Wayne county, and the usual county buildings are there located. In the winter of 1896 the village of Newark, in that county, instituted a vigilant effort to induce the board of supervisors to change the county seat to the village of Newark. An order had been made by a justice of the supreme court requiring the repair of the county buildings in the defendant village. To defeat the efforts of the village of Newark to secure a change of the county seat, the public-spirited citizens in.the village of Lyons offered to the board of supervisors a sum of money supposed to be adequate to make the repairs to the county buildings situated in Lyons; and on the 23d day of April, 1897, the trustees of the village of Lyons passed a resolution authorizing the levying upon the taxable property of the village the sum of $17,500 for the purpose of aiding and assisting the board of supervisors of the county of Wayne in defraying the expense of making additions to, and repairs upon, the court house in the said county of Wayne. A special election was called in the village, and the resolution was approved by a large majority of the popular vote that was rendered on that occasion. Thereupon the machinery for taxation was set in motion, and the amount of tax assessed against the plaintiff was $71.03, and a warrant was issued for the collection of the tax, which the plaintiff refused to pay, and a levy was made upon his property in virtue of the warrant, and a sale was had on December 23, 1897, and, under the duress of .the levy, the plaintiff was .obliged to pay, and did pay, $82.63, to satisfy the tax. It is apparent that the proceeds of the special tax were turned over to the board of trustees to reimburse parties who had advanced money on certain notes, the proceeds of which notes were used for the purpose of inducing the board of supervisors to omit to remove the county seat, and for the purpose of enabling the board of supervisors to use such money .in the reparation, alterations, and changes made to the county buildings. This action was commenced on January 17,1898, for money had and received, and, after a trial before the referee, he found the facts favorable to, and the conclusions of law thereon in favor of, the plaintiff.
1. The illegality of the assessment and tax are clearly demonstrated by the opinion of the learned referee, in language that needs no addition thereto, nor subtraction therefrom.
2. The tax being void, the amount paid may be recovered in an action for money had and received. Bruecher v. Village of Port Chester, 101 N. Y. 240, 4 N. E. 272; Jex v. Mayor, etc., 103 N. Y.
