I assume that the plaintiff was entitled to have so much of the value of her real estate as represented the investment of her pension moneys exempted . from taxation. (People ex rel. Scott v. Williams, 27 N. Y. Supp. 23 ; Yates County Nat. Bank v. Carpenter, 119 N. Y. 550.) Therefore, had she taken proper proceedings to secure her exemption by making demand on the assessors and by reviewing their action, if ad verse, by certiorari, she would be entitled to relief. The plaintiff, however, did not take .this course: The money which she seeks to recover from the defendant was paid under an assessment and levy, valid on their face. Unless the action of the assessors was wholly void, it cannot be attacked collaterally, and the money paid cannot be recovered until the action of the assessors has been set aside.
In my opinion the action of the assessors was not without juris*449diction or void. The assessors had jurisdiction of the person of the plaintiff and of the land which was the subject-matter of the assessment. It is not necessary to review all the cases in which the question of how far the action of assessors is judicial and not subject to collateral attack has been discussed and decided. Heither the case of National Bank of Chemung v. City of Elmira (53 N. Y. 49) nor that of Matter of N. Y. Catholic Protectory (77 id. 342) is in point. In the first case the property assessed was the capital stock of the bank ; in the second case it was real estate belonging to and used for the charitable purposes of the petitioner. The statute forbade the assessment of such property. Here the property of the plaintiff was subject to assessment and taxation. The strongest case (of any that are entitled to be considered as authority) in plaintiff’s favor is that of Prosser v. Secor (5 Barb. 607). In that case the plaintiff was a minister of the gospel, and his whole estate, real and personal, did not exceed $1,500. He Avas assessed and taxed for a farm OAvned and occupied by him. He brought suit against the assessors personally to recover the amount of tax levied on his property and had judgment. This recovery was affirmed by the General Term of the Supreme Court. It was there held that the plaintiff, having an estate less than $1,500, was not a taxable person at all, and, therefore, not within the jurisdiction of the assessors. At the same time it was conceded that if the plaintiff had been subject to taxation in any sum the defendants would not have been liable. This concession is in exact accord with Weaver v. Devendorf (3 Den. 117). There the assessors were sued by a minister for failing to allow him the exemption of $1,500 given by the statute. It was held that as the plaintiff had property in excess of $1,500 in value, it was a case where the assessors had jurisdiction over the property as well as the person; that their action was judicial and for error or misconduct no action would lie. The Prosser case, so far as it held that an action Avould lie against the assessors under the facts of that case, was condemned by the Court of Appeals in Barhyte v. Shepherd (35 N. Y. 238). This last case would be decisive against the right to maintain this action Avere it not for the fact that it in turn has, at least in some respects, been overruled, and the Prosser case rehabilitated with judicial standing by National Bank *450of Chemung v. City of Elmira (supra). Weaver v. Devendorf (supra), however, is quoted with approval in all these conflicting decisions, and the doctrine of the case has never been criticised or impugned. Giving, therefore, to the Prosser case its fullest effect, it would follow that if the real estate of the plaintiff were wholly exempt, this action might be maintained. But, as it was only partially exempt, Weaver v. Devendorf is conclusive that the action will not lie.
What we have written, in my judgment, disposes of this case; but I am not prepared to say that the doctrine of the Prosser case, if sound (which may be doubted), is applicable to a case of this character. An action will not lie against the city to recover moneys paid on a tax before it has been reversed or set aside, unless it would lie against the assessors individually. The exemption given to soldiers and their dependents should be fully maintained and rendered effectual. But it is not imposing any unreasonable burden on such persons to require them to make claim and proof of the exemption to the taxing officers. Assessors may by inquiry discover who are the inhabitants of the town, and to what use real property therein is put. It may be that they could also find out whether a particular person, otherwise the- subject of assessment, was a minister of the gospel or not. But they have no power of divination, and I am at a loss to see how they can evolve from their inner consciousness, without notice or proof aliimde, a determination whether any particular property has been bought with pension moneys, in whole or part, and if in part what part.
The judgment appealed from should be reversed, and as it will be impossible for the plaintiff to succeed on a new trial, the complaint should be dismissed. The action has been brought in equity, and the costs are in our discretion. We think that, under the circumstances, the dismissal of the complaint should be without costs.
All concurred, except Goodbich, P. J., who dissented, and read for affirmance.