Upon certiorari to review an assessment, objections to evidence admitted by the referee, raised before him, but not at Special Term,- held, to be regarded as waived and not to be available in the General Term. People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 Hun, 592 (1885). § 256. Refund of tax paid upon illegal, erroneous or unequal assessment.— If in a final order in any such proceeding it shall be ordered or adjudged that the assessment complained of was illegal, erroneous or unequal, and such order shall not be made in time to enable the assessors or other officers to make a new or corrected assessment for the use of the board of supervisors, then at the first annual session of the board of supervisors after such correction there shall be audited and allowed to the petitioner and included in the tax levy of such town, village or city, made next after the entry of such order, and paid to the petitioner, the amount paid by him, in excess of what the tax would have been if the assessment had been made as determined by such order of the court, together with interest thereon from the date of payment. In case the amount deducted from such assessment by such order exceeds ten thousand dollars, so much thereof as shall be refunded by reason of such corrected assessment, other than the proportion or percentage thereof collected for such town, village or city purposes, shall be levied upon the county at large and paid to the petitioner without further audit. The board of supervisors shall audit and levy upon such town, village or city, the proportion or percentage of such excess of tax collected for such town, village or city purposes, which shall be collected and paid to the petitioner without other or further audit. [Revisers' Note.-L. 1880, chap. 269, § 8; R. S., 8th ed., 1115, without change of substance.] See People ex rel. R. R. Co. v. Keator, 36 Hun, 592 (1885); People ex rel. Eckerson v. Christie, 14 N. Y. St. Repr. 525 (1888). This section provides for and defines the proceedings through which the return of any excess of payment shall be obtained, and that proceeding, as the act has created and defined it, seems to be conclusive, People ex rel. Manhattan Ry. Co. v. Coleman, 1 N. Y. Supp. 112 (1888). See, also, People ex rel. New York El. Ry. Co. v. Coleman, id. 551 (1888). § 257. When county court may apportion tax.- When the premises of one person shall have been wrongfully assessed and taxed in with the premises of another, the person aggrieved thereby may, upon application to the county court of the county in which the property is situated, on petition duly verified, and on eight days' notice to the assessors of the town in which the premises are situated, and to the party whose premises are ineluded in such wrongful assessment, have such assessment and tax apportioned by such county court. The county court shall take such evidence as may be necessary to determine the facts, and shall fix and specify the amount of the assessment and tax properly chargeable to the petitioner's property, and to the other party chargeable therewith. The collector of the town, upon receiving a copy of the order of the county court, shall forthwith change the assessment-roll and tax to conform to such order, and shall receive the amount apportioned upon the premises of the petitioner in full for the tax upon such property. [Revisers' Note.- L. 1875, chap. 331; R. S., 8th ed., 1113, without change of substance.] § 258. Application to county court where taxpayer has removed from the county. If it shall satisfactorily appear by affidavit to the county court of any county that a tax legally levied therein, except upon real property of nonresidents, can not be collected because of the removal of the person taxed to any other county of the state, such court shall, upon application of the collector of any tax district or of the county treasurer of the county, grant an order, directed to the sheriff of the county where such person may be, to collect the same out of his personal property, with interest at the rate of eight per centum per annum from the date of said order. Such order shall be filed in the office of the clerk of the county in which it is granted, and a certified copy thereof delivered to the constable or sheriff of the county where the person liable for the tax may be, and such constable or sheriff, on receiving the same shall execute it, and make a like return, and be entitled to the same fees and subject to the same liabilities and penalties for neglect as upon execution from any court of record. The sheriff receiving such moneys shall pay the same to the county treasurer of the county where it was levied, to the credit of the town in which it was assessed. This provision shall also apply to taxes levied upon rents reserved as upon personal property where such taxes remain unpaid. [Revisers' Note.-L. 1836, chap. 461; R. S., 8th ed., 1120, L. 1846, chap. 327, §§ 4-7; R. S., 8th ed., 1107, L. 1880, chap. 448; R. S., 8th ed., 1162. The original law authorizes the county treasurer to issue a warrant directly to the sheriff without an order of the court.] § 259. Supplementary proceedings to collect tax.— If_a_tax exceeding ten dollars in amount levied against a person or corporation is returned by the proper collector uncollected for want of personal property out of which to collect the same, the supervisor of the town or ward, or the county treasurer or the president of the village, if it is a village tax, may, within one year thereafter, apply to the court for the institution of proceedings supplementary to execution, as upon a judgment docketed in such county, for the purpose of collecting such tax and fees, with interest thereon from the fifteenth day of February after the levy thereof. Such proceedings may be taken against a corporation, and the same proceedings may thereupon be had in all respects for the collection of such tax as for the collection of a judgment by proceedings supplementary to execution thereon against a natural person, and the same costs and disbursements may be allowed against the person or corporation examined as in such supplementary proceedings but none shall be allowed in his or its favor. The tax, if collected in such proceeding, shall be paid to the county treasurer or to the supervisor of the town, and if a village tax, to the treasurer of the village. The costs and disbursements collected shall belong to the party instituting the proceedings, and shall be applied to the payment of the expense of such proceeding. The president of a village and a county treasurer shall have no compensation for any such proceeding. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceeding. [Revisers' Note.- L. 1867, chap. 361; R. S., 8th ed., 1124. The original act authorizes the application for the order to be made to the county judge or special county judge. This section authorizes it to be made to any judge authorized by law to grant an order in supplementary proceedings. The provision that interest be computed from February fifteenth is new.] A dissolution of an order for examination in supplementary proceedings may be moved for on the ground that the order was improvidently granted. Bassett v. Wheeler, 84 N. Y. 466 (1881). Upon an appeal from a motion to set aside supplementary proceedings, the question whether the person proceeded against was a resident will not be reviewed in the Court of Appeals if the evidence is conflicting. Id. A payment made as directed in supplementary proceedings,- held a voluntary one, in an action against the assessors for lack of jurisdiction, the order itself not authorizing seizure. Drake v. Shurtliff, 24 Hun, 422 (1881). Upon an application to the county judge for an order for the examination of a delinquent taxpayer, the affidavit need not allege all the facts necessary to show jurisdiction in the assessors and supervisors. It is sufficient if the requirements of the statute are observed. (Bockes, J., dissenting.) Matter of Conklin, 36 Hun, 588 (1885). The facts of ownership of sufficient personal property out of which the collector could have made the tax, is not a defense to supplementary proceedings for its collection. Matter of Hartshorn, 44 N. Y. St. Repr. 16; S. C., 17 N. Y. Supp. 567 (1892). Code of Civil Procedure, sections 2432-2463, inclusive, provides for proceedings supplementary to execution. Corporations are not subject to its provisions "except in those actions or special proceedings brought by or against the people of the State." § 2463. § 260. Power of county court when collector fails to pay over.If any collector shall neglect or refuse to pay over the moneys collected by him, to any of the persons to whom he is required to pay the same by his warrant, or to account for the same as unpaid, the county court, on proof of such fact by affidavit, on application of the county treasurer, shall make an order directed to the sheriff of the county, commanding him to levy such sum as shall remain unpaid by such collector out of his property, personal and real, and pay the same to the county treasurer, within sixty days from the date of such order. The sheriff shall cause the same to be executed, and pay to the county treasurer the money levied by virtue thereof, deducting for his fees the same compensation that the collector would have been entitled to retain. If the whole sum due from the collector, or if a part only, or if no part thereof, shall be collected, the sheriff shall state the fact in his return, which shall be made as in the case of an execution, and the county treasurer shall give notice to the supervisor of the town, city or division thereof, of any amount which may remain due from such collector. If the sheriff shall neglect to execute the order, or to pay over the money collected thereon, within the time limited thereby, he shall be liable therefor as in case of an execution, and the county treasurer shall immediately prosecute such sheriff and his sureties for the sum due from him, which sum when collected shall be paid into the county treasury. [Revisers' Note.- R. S., pt. 1, chap. 13, tit. III. §§ 13, 14, 15, 17, 18, 19; 8th ed., 1119, L. 1862, chap. 194; R. S., 8th ed., 1123. The original law authorizes the treasurer to issue his warrant to the sheriff without an order of the court. The original requires notice of neglect to be given by the treasurer to the comptroller, and by the comptroller to the attorney-general.] A warrant issued by the county treasurer against a delinquent town collector after the time specified in the statute, is valid, since the provision is merely directory. Looney v. Hughes, 26 N. Y. 514 (1863). Section 13 does not apply to city or village collectors unless specially so provided. Village of Warren v. Phillips, 30 Barb. 646 (1860). § 261. Payment of moneys collected. The county treasurer shall pay over the moneys received from the sheriff upon such order in the manner directed by the warrant to the collector. If the whole amount of moneys due from the collector shall not be collected on such warrant, or otherwise, the county treasurer shall first retain the amount which ought to have been paid to him before making any payment to the town officers. [Revisers' Note.- R. S., pt. 1, chap. 13, tit. III. § 14; 8th ed., 1119, without change of substance.] § 262. Collection of deficiency from collector's bondsmen.- If it appears that the whole or any part of the moneys due from the collector has not been thus collected, the county treasure shall forthwith give notice to the supervisor of the town or ward of the amount still due from such collector. The supervisor shall forthwith cause the undertaking of the collector to be prosecuted, and shall be entitled to recover thereon, the sum due froin the collector with costs of the action. The moneys received shall be applied and paid by the supervisor in the same manner as they should have been by the collector. [Revisers' Note.- R. S., pt. I, chap. 13, tit. III, §§ 15, 16; 8th ed., 1119, without change of substance.] § 263. Attorney-general to bring action for sequestratior.- It shall be the duty of the attorney-general, on being informed by the comptroller or by the county treasurer of any county that |