The petitioner refers to and relies upon section 16 of chapter 686: of the Laws of 1892 for the relief which she sought in her application to the County Court for an order requiring the supervisors, to refund the alleged excessive taxes paid by her.
In her petition she states her ownership of a house and lot, which was assessed, on Love joy street, in the city of Buffalo, and she avers : “ That all of the moneys paid for said lot and house, except the sum of about $180.00, was derived from and consisted of the-pension moneys so received by her as aforesaid. That said land and buildings cost and are worth at least $1,500.” She also avers that “no allowance whatever was made for any pension money paid by petitioner towards the purchase price of said premises, or for the erection of the buildings upon said premises, paid out of' said pension moneys as aforesaid.” She also alleges: “ That she was not informed until the present year that said property, was-exempt from taxation, so far as the same represents a purchase with pension moneys, and that she was entirely ignorant thereof.”
There is nothing in her petition to show that the assessors did not have jurisdiction. Her claim is based upon an allegation of having paid an excessive tax, or, in other words, of having been taxed, on property that was exempt from taxation.
Prior to the passage of section 16, above referred to, the substance of that act was found in chapter 695 of the Laws of 1871, which fell under construction in People ex rel. Pells v. Supervisors (65 N. Y. 300), and the case was decided by a divided court. In that case, the County Court made an order directing the defendant to-refund to the relator an amount specified in a petition “ showing that,, during the years 1866, 1867 and 1868, she had been erroneously assessed by the assessors of Kingston by an overvaluation of her personal property.” (P. 301.) A mandamus was obtained to> *182require the board of supervisors to respect the order made by the ■county judge, and the General Term reversed the order allowing a mandamus, and the Commission of Appeals reversed the General Term, by a divided vote, and affirmed the order of the Special Term, which directed a mandamus to issue to enforce the order.of the county judge. That case was referred to in Matter of Hermance (71 N. Y. 481), and also the statute under which it was decided, and Allen, J., said (p. 483): “ The courts are certainly not in entire harmony, as is very manifest from the reported decisions. (In re Hudson City Savings Institution, 5 Hun, 612; In re N. Y. Catholic Protectory, 8 id. 91; In re Farmers' National Bank, 1 N. Y. S. C. R. [T. & C.] 383; People v. Supervisors of Ulster Co., 65 N. Y. 300, reversing same case reported ; 63 Barb. 83.) ”
In Matter of Buffalo Mutual Gas Light Co. (144 N. Y. 228) the same statutes were referred to, and it was said by O’Brien, J., in speaking of the statute of 1892, viz.: “ This statute is a revision of statutes previously existing on the same subject, and which had frequently been amended and changed by the Legislature. (Laws of 1869, ch. 855, § 5; Laws of 1871, ch. 695; Laws of 1884, ch. 141; Laws of 1885, ch. 326.) The meaning and application of these several acts has been, from time to time, the subject of much contention in the courts, and the decisions are not entirely harmonious. (People ex rel. v. Supervisors of Ulster Co., 65 N. Y. 300; Matter of Hermance, 71 id. 484; Matter of the Catholic Protectory, 77 id. 342; Williams v. Supervisors of Wayne Co., 78 id. 561).” (See, also, Broderick v. City of Yonkers, 22 App. Div. 448 [second department], decided by a divided court; Lapolt v. Maltby, 31 N. Y. Supp. 686; Van Hise v. Board of Supervisors, 21 Misc. Rep. 572.)
In none of the cases which have been examined has much force or stress been laid upon the word “improperly,” found in section 16 of the act of 1892. The opinion which has been prepared by Mr. Justice Follett in this case very fully and satisfactorily demonstrates that the use of the word “improperly” does not add anything to the force of the prior expression, “illegally,” as it cannot be said that the taxes were illegally imposed upon the respondent, inasmuch as the assessors had jurisdiction of the person and property assessed; *183and as she made no objection on grievance day to the assessment, but voluntarily paid the taxes that were imposed in virtue of the assessments so made, it is satisfactorily shown in his opinion that she was not entitled to receive from the county judge the order which was granted upon her petition. I, therefore, concur in the opinion which recommends a reversal of the order made by the County Court of Erie county.
Order reversed, with costs.