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ground that the correction and alteration were unauthorized. People ex rel. v. Assessors, 137 N. Y. 201; S. C., 50 N. Y. St. Repr. 404 (1893).
Where a board of assessment has rendered judgment in assessment proceedings, mandamus is not the proper remedy for obtaining a review of the judgment. Such review may be had on a writ of certiorari. People ex rel. Osborne v. Gilon, 24 Abb. N. C. 125; S. C., 18 Civ. Pro. R. 112; 30 N. Y. St. Repr. 515; 9 N. Y. Supp. 563; affirmed in id. 212 (1889).
Mandamus is the proper remedy to compel board of assessors of a city to correct a clerical error in including relator's lot in an assessment, where it is in fact outside of the district of assessment. People ex rel. Nostrand v. Wilson, 119 N. Y. 515; S. C., 30 N. Y. St. Repr. 79; affirming 27 id. 279; S. C., 7 N. Y. Supp. 627 (1890).
The collector of assessments is properly joined in such proceedings to restrain him from proceedings to collect the illegal taxes. Id. The fact that it does not affirmatively appear that relator had applied to board of assessors before commencing the proceedings is not a jurisdictional defect, and its omission will not warrant the reversal of an order awarding a mandamus. Id.
The comptroller of New York city acts ministerially in drawing his warrant on the city chamberlain for the amount of State taxes, and a mandamus will lie to require him to do it where there are sufficient funds and the officers and boards assessing and levying the taxes have discharged their statutory duties. People v. Myers, 35 N. Y. St. Repr. 755; S. C., 12 N. Y. Supp. 182; affirmed in 126 N. Y. 639 (1891).
Mandamus lies to compel comptroller of New York city to issue revenue bonds to pay State taxes, independent of the action of the board of estimate and apportionment. Matter of Attorney-General, 58 Hun, 218; S. C., 34 N. Y. St. Repr. 284; 12 N. Y. Supp. 754 (1890).
A writ of mandamus will issue upon application of a taxpayer to compel county treasurer, who has received the amount of taxes collected from a railroad during several years, and made no application thereof, permitting the same to remain in the general fund, to apply the same for the purchase of bonds for a sinking fund for the redemption and payment of bonds issued by a city in aid of the railroad, as required by Laws 1869, chap. 907, § 4, as amended by Laws 1871, chaps. 283, 925. Spaulding v. Arnold, 125 N. Y. 194; S. C., 34 N. Y. St. Repr. 980 (1891). But the court will not assume their misappropriation, it not appearing that the county treasurer has made any distribution, but they will be regarded as embraced in the existing general fund, it appearing that that fund contains more than their aggregate amount. Id. Where there has been no misappropriation, the duty to invest it according to law is a continuing one, and the statute of limitations does not apply to defeat the taxpayer's application. Id. It is not necessary, to make out a case, to establish the identity of the particular funds. Id. The fact that the respondent holds the fund as successor in office to person to whom it was paid, will not prevent the issuance of a mandamus compelling him to make the proper investment. Id.
4. Proceedings by Writ of Prohibition.
A writ of prohibition does not lie to a ministerial officer, such as a collector of taxes, to stay the execution of process in his hands. People ex rel. Onderdonk v. Supervisors of Queens, 1 Hill, 195 (1841); explaining and in effect overruling People ex rel. Averill v. Works, 7 Wend. 486 (1832), where a writ of prohibition was issued to a collector to prevent the collection of an illegal tax.
Where a writ of prohibition was issued to a board of supervisors against levying any tax upon the relator, a national bank, assessed upon its capital,— held, that the writ should be quashed. 1. Because it is doubtful whether the board of supervisors have the right to alter the assessmentroll. 2. Because the writ of prohibition is granted only on showing satisfactory grounds, and that no serious public inconvenience can arise from the delay, and it should not issue where other adequate remedies exist. People ex rel. First Nat. Bank of Kingston v. Supervisors of Ulster, 31 How. Pr. 237 (1864).
The remote probability of the insolvency of the assessors,- held, in the absence of proof of the fact, not to be considered. Id.
5. Proceedings for the Recovery and Refunding of Taxes and of Damages.
(a.) Actions against Towns.
The assessment and collection of taxes by the officers of a town are not corporate acts. The assessors and collectors, when performing their duties as such, are not to be regarded as its agents so as to make the town responsible for any mistakes or misfeasance by them in the performance of their duties. Lorillard v. Town of Monroe, 11 N. Y. 392 (1854). See, however, § 182 of Town Law.
Where land was erroneously assessed by the assessors of a town, which was not situated within it, but in an adjoining county, and payment of the tax was enforced by the town collector,- held, that the town was not liable in an action by the owner of the land to recover the amount of the tax. Id.
Where a tax erroneously assessed upon exempt property had been paid to the town collector and turned over to the county treasurer, who applied it in the same manner as other taxes of the town.- held, that the town having no treasurer, no action could be maintained against it to recover back the money, the officers to whom it was paid not being representatives of the town for any purposes but those prescribed by statute, and the money having been expended. City of Rochester v. Town of Rush, 80 N. Y. 302 (1880); reversing 15 Hun, 239 (1878).
Concerning the recovery back of moneys paid for taxes illegally assessed, see cases cited in 17 Alb. L. J. 120.
(b.) Actions against Cities.
Where a bank paid a tax on its capital invested in United States bonds, upon a resolution of the common council by which it was agreed that if the bank should pay without a warrant being issued, such payment should not be considered as voluntary but as made under protest,- held, that the resolution being unauthorized did not bind the city, and that the payment was to be regarded as voluntary and the money could not be recovered back. Commercial Bank of Rochester v. City of Rochester, 42 Barb. 488 (1864).
A municipal corporation is not liable for money paid as a tax illegally assessed. Smith v. City of Poughkeepsie, 37 N. Y. 511 (1868). See Manley v. Mayor, 24 W. Dig. 95 (1886).
(c.) Actions against Counties.
A suit against a county must be brought against the board of supervisors, not the individual members thereof. Magee v. Cutler, 43 Barb. 239 (1864). See dictum in People ex rel. Raplee v. Reddy, 43 Barb. 544 (1865), that an action would lie against a county to recover back the amount of a tax upon an erroneous assessment.
No action will lie to recover of the county, or of a municipal corporation, money collected or received upon or for a tax based upon an erroneous assessment. Genesee Nat. Bank v. Supervisors of Livingston, 53 Barb. 223 (1869).
Where a bank is located in the town where it is assessed, the assessors have jurisdiction of it, and of the description, amount and value of its property, and an assessment upon the whole capital, without deducting the value of United States bonds held by the bank, is within such jurisdiction, and, if an error, can be reviewed upon certiorari but cannot be reviewed in an action to recover from the county the amount of the tax paid under protest.
If the assessors have acquired no jurisdiction of the person, an action lies against them, but when they have such jurisdiction, no suit can be maintained against any person for the imposition or collection of a tax erroneously imposed. Id.
The action of the board of supervisors in issuing a warrant for the collection of taxes is the corporate act of the county. Newman v. Supervisors of Livingston, 45 N. Y. 676 (1871).
Plaintiff had placed the amount of a tax assessed against him, in a package upon his counter before the collector, but forbade his taking it, claiming that the warrant was defective, and notified him that he would be held responsible therefor. The collector took the package. Held, that these facts did not constitute a voluntary payment, nor estop the plaintiff from disputing the legality of the warrant. Bellinger v. Gray, 51 N. Y. 610 (1873).
The amount of an assessment made for a specific object, under a statute which provides for payment of the tax to special commissioners,
cannot be recovered back from the county, ough the tax passed through the hands of the county treasurer. Dewey v. Supervisors of Niagara, 62 N. Y. 284 (1875); reversing 2 Hun, 392 (1874).
To entitle one whose goods are unlawfully seized and sold for the payment of a tax to recover against the municipality, it must be shown that the acts of the officers were authorized by the corporation, or ratified by it. Everson v. City of Syracuse, 100 N. Y. 577 (1885); reversing 29 Hun, 485 (1883), which, however, did not touch this point.
Receipt of the proceeds of sale in the absence of notice, a resolution of the common council to save the officer harmless conditioned upon his acts being lawful, and a refusal by the mayor of a demand to pay the owner, not merely the money collected out of his property for the city tax, but the entire value of the property seized, which largely exceeded the amount of the city and county charges,- held, not to be ratification. Id.
Under Laws 1873, chap. 863, title 8, §§ 18-20, page 1323, the registrar of arrears in the city of Brooklyn had the right to bid in on behalf of the city land sold for taxes, and to sell the certificate and warrant the validity thereof. As the money received for such certificate must by law be applied for the benefit of the city,- held, that it could be recovered back from the city upon failure of the title. Brevoort v. City of Brooklyn, 89 N. Y. 128 (1882); reversing 18 Hun, 383 (1879). Recovery back of taxes limitation of action. See 13 Alb. L. J. 255.
(d.) Actions against Assessors.
The trustees of a school district are liable in trespass for making and collecting an assessment voted at a regular meeting to change the site of a schoolhouse, where the previous consent of the commissioners of common schools has not been obtained. Baker v. Freeman, 9 Wend. 36 (1832).
Overvaluation to the extent of double the proper sum in the assessment,- held, not to support trespass against the trustees of a village. In such an action the amount assessed is conclusive. Ontario Bank v. Bunnell, 10 Wend. 187 (1833).
Uncorrected errors on the face of an assessment-roll do not justify the supervisors or collector in disregarding it. Van Rensselaer v. Cottrell, 7 Barb. 127 (1849); affirmed in Seld. Notes, 25.
In an action of trespass against a supervisor and a collector of a town it appeared that property was taken by virtue of a warrant signed by the supervisor, and in justification defendants put in evidence an assessment-roll to which a certificate subscribed by the assessors was attached, which stated that they had valued the real estate thereon at the sums which a majority of the assessors "have deemed proper," and that the roll contained a true statement of the amount of personal property "according to the usual way of assessing." Held, that the certificate was not a compliance with the statute, and that as on the face of it it gave no
jurisdiction to the supervisors to impose a tax, it was not protection to the collector. Van Rensselaer v. Witbeck, 7 N. Y. 517 (1852); compare Bradley v. Ward, 58 id. 401 (1874).
Action for damages will lie against assessors who enter the name of a person not a resident of the town or ward at the time the assessment is made. Mygatt v. Washburn, 15 N. Y. 316 (1857).
Where assessors have jurisdiction of the person of the plaintiff and of the subject-matter of taxation, though their assessment be erroneous, it is not void, and can be corrected only by an appropriate proceeding for that purpose. It does not render the assessors liable for damages at law. Swift v. City of Poughkeepsie, 37 N. Y. 511 (1868).
In Bailey v. Buell, 50 N. Y. 662 (1872), the plaintiff sued the assessors of a town for damages for an illegal assessment, he being a nonresident. He had paid the tax, however, on being served with an order of the county judge in supplementary proceedings under Laws 1867, chap. 361, page 817, directing him to pay or execution would issue. Held, that the order of the county judge was void, being not authorized by the statute; that the payment was not compulsory, or made under legal duress, but was voluntary; and that the plaintiff could not recover.
The omission of assessors to deduct the value of real estate from the assessed value of its shares of stock,- held, not a manifest cierical or other error to be corrected under Laws 1871, chap. 695, page 1525. Matter of Farmers' Nat. Bank, 1 Thomp. & C. 383 (1873).
Where real property within the assessors' jurisdiction was assessed to the owner, resident of another county, whose agent objected to the valuation and was heard thereupon, and no objection was taken to the assessment to the owner instead of the occupant,- held, that an action against the assessors for such assessment as wrongful would not lie. Stewart v. Fonda, 19 Hun, 191 (1879).
The assessors placed the plaintiff's name on the assessment-roll after the first day of July, but he paid the tax without protest. Held, that he could not recover the amount from the assessors since the payment was a voluntary one. Sexton v. Pepper, 28 Hun, 31 (1882).
In addition to these cases cited, see Collection of Taxes, ante.
(e.) Actions against Collectors.
In Beach v. Furman, 9 Johns. 229 (1812), the court held that trespass would not lie against a constable who executed a warrant, issued by commissioners of highways, by seizing the property of a woman, for neglect to work on the highways, as assessed, although a woman was not liable to such assessment.
In Savacool v. Boughton, 5 Wend. 170 (1830), the court overruled the opinion in Suydam v. Keys, 13 Johns. 444 (1816). Suydam v. Keys was trover to recover property levied upon, under a warrant from school trustees against persons not inhabitants of the town, and the collector was held guilty of trespass, on the ground that he was bound to see that