49 N.Y.S. 553 | N.Y. App. Div. | 1898
This action was brought to recover certain taxes which it- is alleged were illegally assessed upon the plaintiff’s house and lot situate in the ninth ward of the city of Utica, and which were collected of her in the years 1892, 1893 and 1894, and also to have the assessment for the year 1895 declared null and void.
It -appears that the plaintiff’s -husband was -at one time in the military service of the United States; that in the year 13-75 the plaintiff, as his widow, received pension moneys from the government to the extent of $450 ; and that she has been in receipt of a pension of $8 per month ever since. In 1875 she loaned her brother between $300 and $400 of her pension money, and took from him as security therefor a mortgage upon the house and lot in
At the time of the conveyance there was about $600 of principal' and interest due upon the mortgage, which was applied towards the purchase ¡nice of the house and lot, and the balance was paid in cash which the plaintiff had obtained from various sources. Some of it she had earned in the laundry business$200 thereof she had on deposit in a bank, and a portion she says was pension money which she had saved, but the amount thereof does not clearly appear.. It is manifest, however,, that the property was by no means wholly paid for with pension moneys; and, this being the case, the assessors-did not act without jurisdiction in making the assessment. (Matter of Peek, 80 Hun, 122; Matter of Murphy, .9 Misc. Rep. 647; People ex rel. Breed v. Wells, 10 id. 195.)
It follows, therefore, that the plaintiff, having paid her assessment for the years 1892,1893 and 1894 voluntarily, is now estopped from recovering the taxes for those years by action. (Tripler v. The Mayor, 125 N. Y. 617; Vanderbeck v. The City of Rochester, 122 id. 285.)
We are consecjuently of the opinion that the judgment appealed from should be reversed and a new trial ordered.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.
