Toal v. City of New York

The plaintiff seeks to recover the amount of four improvement assessments and five annual taxes paid by her in 1893 to 1898, amounting to $1,515.28, with interest on the respective payments, on the ground that the real estate assessed, which belonged to her deceased husband, John T. Toal, was purchased with pension moneys, and therefore all of the assessments were void, and the sums paid by her can be recovered, although voluntarily paid, because she was ignorant of her legal rights when the payments were made.

The proof that her husband bought the property in 1887, with pension moneys, is not satisfactory. The only fact tending to support such a claim is that he was in receipt of a pension as a soldier of the Civil War, and that at some period of time within a year or two of the purchase he obtained arrearages for an increase of five dollars a month. The remaining evidence consists of his declarations to her, which were not objected to upon the trial, that he

But, even were the inferences from the evidence sufficient prima facie to sustain a finding that the premises were paid for by pension moneys, unmingled with others, a serious difficulty still lies in the way of recovery. The payments were voluntarily made by the plain-. tiff, no claim of exemption having been made as against the assessment or against the collection of the taxes. The plaintiff relies' upon the force of those precedents, which declare that money paid upon a void assessment may be recovered, as the assessors never obtained any jurisdiction, and the warrant for the collection of taxes operates by way of quasi compulsion. Where assessors step beyond the line of their-jurisdiction, and assess the personalty of a nonresident, - or take in upon their roll any realty which is plainly exempt, they have not acquired the power to act within the limits of their official discretion. An assessment of church property might be void, because the distinctive occupation visible to the assessors forbids their entry of such property upon their assessment; but, where the opportunity comes to them in the direct path of their official duty to determine the amount to be assessed upon realty, the act of the assessors cannot be attacked collaterally, as was held by the court of appeals in the case of United States Trust Co. v. City of New York, 144 N. Y. 488 , 39 N. E. 383 , where the taxation was upon the exempt capital and surplus. The same principle was followed in the case of Broderick v. City of Yonkers, 22 App. Div. 448 , 48 N. Y. Supp. 265 , where it was distinctly proven that part of the realty was purchased with pension moneys. In Barhyte v. Shepherd, 35 N. Y. 238 , the court of appeals decided that the assessors were not liable for damages in not exempting §1,500 in the assessment of the property of a minister of the gospel, although his occupation must have been well known. In Swift v. City of Poughkeepsie, 37 N. Y. 511 , the court of appeals held that, where a tax had been collected and paid into the -treasury of the municipal corporation, the corporation would not be liable to refund the tax illegally assessed. Prima facie, all of the real estate in the city of New York, unless distinctly occupied for a publicly known exempt purpose, is liable to the jurisdiction of the assessors in placing upon the assessment rolls the property, within the territorial limits of the city, which is to pay its share of the taxes necessary to be raised for governmental purposes, the protection of property, and the security of personal rights. To all outward

Complaint dismissed, with costs.