Bailey v. Buell

By the Court, Johnson, J.

The counsel for the defendants moves for a new-trial on two grounds, only: 1. That the judge at the circuit erred in refusing to nonsuit the plaintiff upon the ground on which the motion for a non-suit was made; and, 2. That the judge erred in refusing to charge the jury as requested by the defendants’ counsel.

The first ground upon which the nonsuit was asked, was that the payment of the tax, made out upon, and annexed to, the assessment, was voluntary, and therefore no action could be maintained on account of such payment. It would be, perhaps, a sufficient answer to the motion on this ground, that this is not an action to recover back the money paid, as an action for money had and received, but an action in the nature of an action on the case, to recover the damages sustained by the unlawful assessment. In each of the cases cited by the defendants’ counsel, the action was to recover back the Inoney paid, in an action as for money had and received, and the question was whether the payment was voluntary, or upon some compulsion, at the time it was made.

The principle of voluntary payment, applies in such actions only. In all actions in the nature of actions on the case, for a wrong, the question is whether the plaintiff has béen injured by the wrong complained of. But if the principle of voluntary payment could be held to apply in actions of this kind, the cause of which is an. alleged illegal assessment, it could not affect this case. The payment here was not in any just or legal, sense a. voluntary payment. The case shows that the tax was not paid by the plaintiff to the collector of taxes for the town in which the plaintiff was assessed, but that such collector returned the tax uncollected, for want of goods and chattels out of which to collect the same; -and that thereupon, in the month of August, 1868, the supervisor of the town in which such plaintiff had been assessed and taxed, instituted before the county judge of Ontario county, proceedings in the nature of proceedings supplementary to execution in civil actions, to compel the plaintiff to pay such tax, pursuant to the statute of 1867. (Sess. Laws of 1867, c/i. 361.) Under this proceeding the plaintiff was, in pursuance of an order to that effect, made to appear before the county judge, and be examined under oath concerning his property. Afterwards, and in this proceeding, the county judge made a peremptory order requiring the plaintiff forthwith, on service of a copy thereof on him, to pay to the county treasurer of said county the tax as assessed and levied, amounting to the sum of $198.09, and the further sum of $39.20, costs and disbursements of the proceeding, and that execution be issued therefor to the sheriff of. said county. "Upon the service on the plaintiff, of a copy of this order, he paid the amount so ordered and adjudged, to the county treasurer. The. only property, as it appears, which the county judge discovered, in the proceeding, belonging to the plaintiff, was $500, deposited to his credit in the bank of Lima, Livingston county.

It will be seen, therefore, that this was in no sense a voluntary payment of the tax founded upon the assessment, but a payment upon a peremptory order of the county judge, in another proceeding, in the nature of a bill of discovery, to compel the payment of such tax, with costs of such proceeding.

If the assessment was illegal and unauthorized, there can be no question but that the plaintiff has been injured .by it. ' ,

The second ground of nonsuit urged, was that the plaintiff was, in fact and in law, a resident of the town of Bast Bloomfield, and liable to assessment and taxation there, inasmuch as it appeared that himself and his family were actually living there when the assessment was made, and there was no evidence that he had any other residence. The question whether the plaintiff was a resident of that town at the time the assessment was made and completed, was a question of fact for the jury to determine, upon all the evidence, and it was properly submitted to them. The motion for a nonsuit was therefore properly denied.

The request of the defendants’ counsel to the judge to charge, was: 1st. That every citizen of the State has a residence in some town or village or city, in which he is liable to taxation. 2d.'That if, at the time the assessment is made, a citizen of the State is staying even temporarily in a town, and has no residence in any other town or place, he is liable to assessment and taxation in the town in which he is so staying.

The judge refused to charge as requested, on either proposition, in any other or different manner than he had already charged, and the defendants’ counsel excepted. The judge had charged the jury that they had nothing to do with the question whether the plaintiff was or was not liable to be assessed and taxed in some other town or place, but the only question for them to determine was, whether he became a resident of the town of Bast Bloomfield, so as to warrant the assessors in assessing him in that town. The charge, as given, laid down the true rule, and the judge very properly refused to charge as requested. The town or place in which an inhabitant may be assessed and taxed is prescribed, by statute, and it does not follow that a person may be lawfully assessed and taxed in a town in which he is confessedly not a resident, merely because he happens to be there temporarily when the assessment is being made, in case it should turn out that he is not a taxable inhabitant of some other town or place in the State, though’ a citizen of the State.

The plaintiff was assessed for personal estate only. The statute (1 R. S. 389, § 5) provides that “ every person shall be assessed in the town or ward where he resided when the assessment was made, for all personal estate owned by him.” He must be assessed where he resides, for such property, and cannot be assessed for it elsewhere. If the assessors undertake to assess a person for that description of property, who is not a resident of their town, they render themselves' liable, in an action by the party wrongfully -assessed, for the damages he sustains in consequence of such .illegal assessment. This is conclusively settled. (People v. Supervisors of Chenango, 11 N. Y. 563. Mygatt v. Washburn, 15 id. 316.) The plaintiff, in such an action, is not bound to show that he is a taxable inhabitant of some other town or place in order to maintain it; nor could the contrary be shown by way of defense. It is enough for him to show, in such a case, that he was not a resident, and the assessors had no jurisdiction over him to make such assessment.

[Fourth Department, General Term, at Buffalo, February 6, 1871.

The jury having found, under proper instructions from the court as to what constituted a person a resident of a town, within the meaning of the statute, that the plaintiff was not a resident of East Bloomfield at the time the assessment was made, properly gave a verdict in his favor for the amount he was compelled to pay by reason of the wrongful assessment.

A new trial must therefore be denied.

Mullin, P. J. and Johnson and Talcott, Justices.]