I am compelled to differ with my associates in respect to the decision of this appeal.
The plaintiff brings her action to set aside and restrain the collec*451tion of taxes imposed upon the premises 46 and 48 Vineyard avenue, Yonkers, in the years 1893, 1894 and 1895, and of certain assessments for local improvements, and also to set aside and recover back taxes imposed upon the property for the years 1889,1890,1891 and 1892, all of which latter were paid by her. The plaintiff is the widow of an honorably discharged soldier of the war of the rebellion who died in January, 1884. As such widow she received a pension in April, 1889, such pension commencing at the death of her husband, so that she received for back pension the sum of §1,200. In August, 1889, she purchased the premises in question for §3,200, paying in cash the amount received'for the back pension, §1,200, and assuming a §2,000 mortgage. This property she occupies as her home. Thus it is evident that the entire amount paid by her in cash was her back pension money.
Section 1393 of the Code of Civil Procedure reads as follows: ££ The pay and bounty of a non-commissioned officer, musician or private in the military or naval service of the United States or the State of Rew York; a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a State, for military or naval services; a sword, horse, medal, emblem or devise* of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a State; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of. an execution, and from seizure for non-payment of taxes, or in any other legal proceeding.”
In Yates Co. Nat. Bank v. Carpenter (119 N. Y. 550) Ruger, Ch. J., writing the opinion, it was held that where a pensioner who had a wife and family, purchased a house and lot for his home, paying a portion of the purchase price out of the proceeds of a pension certificate, and giving a mortgage on the premises to secure the balance, the premises were exempt from sale on execution. By the Revised Statutes (1 R. S. [8th ed.] 388) all property exempt from execution is also exempt from taxation.
In the case of People ex rel. Scott v. Williams (27 N. Y. Supp. 23) it was held (Bradley, J.) that property purchased with pension money granted to a widow for her husband’s services, stood upon *452the same plane as pension money granted to the soldier, and was equally exempt from taxation.
The assessors placed the value of the property in 1889 at $4,000, and in 1890, 1891 and 1892 at $3,600. It may well be assumed, as we do assume, that the value of the property at the time of its purchase in 1889 was the price paid for it, so that it is evident that when the assessors placed the value at $4,000 in 1889, and assessed the taxes at that valuation, no allowance was made by them for the $1,200 pension money which the plaintiff had invested in the property. The plaintiff paid her taxes for these years according to the assessed valuation, but when the assessment was made in 1893 she made her claim for exemption to the extent of $1,200, and this was allowed by the assessors at $600 on each of the two lots. A claim for the repayment for the taxes of 1891, 1892 and 1893 was presented to the common council of the defendant city sixty days before the commencement of this action, according to the statute, and, the city neglecting to repay the same, this action is brought to recover the taxes of these years on the ground that they were illegally assessed.
The defendant contends that the plaintiff’s remedy is certiorari, instead of the present action. This question is decided adversely to the defendant by the Court of Appeals in the cases, Nat. Bank of Chemung v. City of Elmira (53 N. Y. 49) and Matter of New York Catholic Protectory (77 id. 342), where it was held that it is not essential to the exercise of the power conferred on the County Court that the assessment should have been adjudged illegal by some competent tribunal.
The principle upon which the decision of the case at bar must rest is, that where the assessors have jurisdiction, and erroneously assess taxes after the exercise of their discretion, their decision is final, except as it may be reviewed on certiorari, but where the assessors have no jurisdiction to make an assessment or levy a tax; in other words, where their action in assessing property which they have no right to assess is illegal, they acquire no jurisdiction, and an action of this character may be maintained.
"While there has been some inconsistency in the decisions of the courts in respect to this question, we are not required to analyze them, as the Court of Appeals, in the case of Nat. Bank of Che-*453mung v. City of Elmira (supra), Church, Ch. J., writing the opinion, carefully reviewed and distinguished the authorities prior to that time, and declared the law to be that, “ while there is some apparent conflict in the application of settled principles to particular cases, I am confident that no adjudged case can be found which will relieve the defendants from liability. The distinction is between an erroneous and an illegal assessment. The former is when the officers have power to act, but err in the exercise of the power; the latter where they have no power to act at all, and it does not aid them to decide that they have. It is argued that they have jurisdiction to determine what property is taxable in the town. This is a mistake. The legislature determines that question, and the officers have no power over it. The statute requires the assessors to ‘ascertain, by diligent inquiry,’ two things: 1. The taxable inhabitants. 2. The taxable property. W here they decide erroneously as to a taxable inhabitant it is conceded, and the Mugatt Case (15 N. Y.) holds that they are liable as trespassers. Why nofwhen they err as to taxable property % The duty is precisely the same, and the power conferred in the same language. Assessors must have jurisdiction over the person and subject-matter. ' The person must be an inhabitant of the town, and the property must he taxable. Otherwise, the assessment is illegal and void. The legislature has declared that the capital of national banks is not taxable property. Bank shares are not capital. (3 Wall. 573.) The assessors have, therefore, no jurisdiction over it. In this case they exercised no judgment; there was none to be exercised. There was no dispute about the facts. There was no .pretense of mistake even. They simply decided to violate the statute; and while bad faith will not be imputed, we must assume that they did so voluntarily and intentionally, and yet such an act is claimed to be judicial, and, therefore, exempt from collateral attack.”
The complaint alleges that, in the assessments for the year 1889, no credit or allowance was made for pension money paid by the plaintiff upon the premises, and this allegation is distinctly admitted •by the answer. If there had been no such admission in the answer we might have held that the assessors had jurisdiction of the property and power to determine its assessable value, but here we have a clear admission that the assessors made no allowance for the exempt *454property, and this brings the question within the remarks of Judge Rapallo in The Matter of New 7orle Catholic Protectory (supra)? “ The imposition of the tax in question was manifestly illegal, the property upon which it was assessed being by law exempt from taxation. It was not a case merely of an error of judgment in determining the amount of the tax, but of a total want of jurisdiction in the assessors to assess the property at all.”
In the present case the exemption of the pension money was statutory, and the assessment of the premises was, to that extent, illegal. It is no answer to say that the assessors had jurisdiction to assess the particular piece of real estate. They had no right to assess that part of its value which represented the plaintiff’s pension money, as the answer admits, and the Special Term found, they have done, and thus far their action was illegal and void.
It is further contended that this action cannot be maintained because no notice was given to the assessors of the plaintiff’s claim for exemption, but this constitutes no defense where the act, as in the present instance, was illegal and void. Such was the well-considered decision of the County Court of Sullivan county, Judge Smith, in Lapolt v. Maltby (31 R. Y. Supp. 686).
It was the evident intention of Congress and the Legislature that the pension granted to a soldier for disability, or to the widow and children of a deceased soldier, should be devoted to their support so far as the very moderate allowance made to them will permit. Allowances to individuals are not large, and if I had any doubt as to the correctness of the authorities cited, I would be inclined to resolve these doubts in favor of the pensioner, but I have no such doubt. The statutes and the decisions are in uniformity and in perfect accord. I think that the plaintiff is entitled to recover the proportionate amount of the taxes upon $1,200 for each of the years in question.
The plaintiff also claims to recover assessments paid by her for local improvements. The exemptions provided by statute do not extend to assessments of this character, but relate only to taxes, and this is in accordance with the decision of the Special Term.
The judgment should be affirmed.
Judgment reversed and complaint dismissed, without costs.
Sic.— [Rep.