[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 410 It is provided by section 4 of the Tax Law (Laws of 1909 Chapter 62; Cons. Laws, ch. 60) that certain property described therein shall be exempt from taxation and included in the property so described therein is the following: "3. Property of a municipal corporation of the state held for public use, * * * except the portion of municipal property not within the corporation." As it is conceded that thirty-seven acres of the forty-five acres assessed were within the corporate limits of *Page 413 the village of Delhi and devoted exclusively to public use, it should not have been included in the assessment by the board of assessors. The eight acres without the corporate limits were subject to assessment and taxation. (People ex rel. City ofAmsterdam v. Hess, 157 N.Y. 42.) The assessment as made was not void upon its face and it did not constitute a manifest clerical or other error.
It was an illegal and improper assessment so far as it included the thirty-seven acres that are within the boundaries of the village of Delhi. The part illegally and improperly assessed was a divided and not an undivided part of the forty-five acres. It is asserted without contradiction that during each of the years mentioned the tax levied upon said assessment was paid promptly and without protest.
No objection was made to the assessment or to the tax to any board or officer and such complete acquiescence in the assessment and tax continued during all of the years mentioned prior to 1908 and also including, it is asserted, a similar yearly assessment and tax from the time when the water works property and plant was purchased by the village to said year 1902. It was not even suggested to the tax collector that the village desired to pay the tax on the eight acres, a part of the lot, piece or parcel of land charged with the tax, and leave the remainder unpaid as provided by section 79 of the Tax Law. It was not alleged in the application to the board of supervisors to have the tax refunded or in the application to the County Court herein that the payments were made from year to year in ignorance of the fact as to the boundary line of the village or of the further fact that municipal property within such boundaries is legally exempt from tax. The property of a municipality acquired and held for public use is not a taxable subject within the purview of the tax laws unless specially included. (People ex rel. Mayor, etc., of N.Y. v. Assessors of Brooklyn, 111 N.Y. 505.) It may be assumed that the village had knowledge of its own boundaries and of its legal rights and it cannot now be said that the payments were compulsory. *Page 414
Where an assessment is void on its face and a person without duress in fact pays the tax levied upon such assessment, it is a voluntary payment and cannot be recovered under section 16 of the County Law. (Matter of McCue v. Supervisors of Monroe Co.,162 N.Y. 235; Matter of Reid, 52 App. Div. 243; Matter ofGardner, 52 App. Div. 625; affd., 167 N.Y. 621; Toal v. Cityof New York, 34 Misc. Rep. 18; affd., 67 App. Div. 619; Matterof Village of Medina, 52 Misc. Rep. 621; affd., 121 App. Div. 929. )
Where an assessment although valid on its face, but in fact illegal and void, is paid by a person with knowledge of the facts which render the assessment void and without duress in fact it is a voluntary payment. (Haven v. Mayor, etc., of N.Y., 67 App. Div. 90; affd., 173 N.Y. 611; Tripler v. Mayor, etc., ofN Y, 125 N.Y. 617.)
Section 16 of the County Law (Laws of 1909, chapter 16) contemplates that in a proceeding of this kind application shall first be made to the board of supervisors to have the illegal and improper tax refunded and the County Court has no power to direct the board of supervisors to refund such tax until the board of supervisors has passed upon the question adversely to the claim of the applicant. It appears in this case that the application to the board of supervisors did not present to them any facts upon which they were required to refund the taxes as requested in the petition. No application of any kind was presented to the board of supervisors to have them apportion the assessment between the real property properly assessed and the real property illegally and improperly assessed, or to refund a part of the taxes paid, namely, the part collected upon such illegal and improper assessment and levy.
The application to the County Court was in the nature of a new and independent proceeding, and not in the nature of a review of the determination of the board of supervisors upon the question presented to them. Where taxes are assessed upon property a divided part of which is wholly exempt, and the owner thereof is compelled to pay the same, *Page 415 including the taxes upon the property illegally and improperly assessed, it is the duty of a board of supervisors on proper application, to apportion said taxes and refund the amount so paid upon the part illegally and improperly assessed and levied, and in case of the failure of the board of supervisors so to do the County Court has power to make an order requiring the board of supervisors to refund the same. The facts presented to the County Court herein did not justify the order granted by it.
The order of the Appellate Division should be affirmed, with costs.
CULLEN, Ch. J., VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur; HAIGHT, J., absent.
Order affirmed.