In the case of Adams v. Supervisors (154 N. Y. 619) it is held : “ The provision of the County Law (L. 1892, ch. 686, § 16) which confers upon the board of supervisors power to refund to any person the amount of an illegal tax collected from him, and upon the County Court power to direct that it be refunded, was intended for the benefit of a party who pays an illegal tax voluntarily,, as well as one who pays under duress. It is a general provision for the benefit of any one from whom an illegal tax has been collected.”
In. that case the plaintiff, the executor of Lydia M. Wilcox, paid a tax assessed to the “ Estate of Mrs. L. M. Wilcox.” By the will he was invested with power to sell. He paid the tax to effectuate a sale of the land which the purchaser refused to complete unless the tax was paid. After having paid the same he applied to the.board of supervisors of Monroe county to refund to him the tax under chapter 686 of the Laws of 1892. This was refused. He then applied to the county judge for an order compelling them to refund to him said tax, which application was denied. Upon appeal to the Appellate Division, this court held, reversing the order of the county judge, that inasmuch as the payment was not voluntary, he was entitled to recover the same under the act in question. Upon appeal to the Court of Appeals, the rule of law as above stated was held. Judge O’Brien, in writing for a unanimous court, discusses .the question whether the payment of. the tax was voluntary or under compulsion. He says: “ All that the statute requires a party who makes such an application to the supervisors to show is that the county, through its.proper officer, had collected from him a tax illegally or improperly assessed or levied. It would not be very difficult to show that the payment in this case was compulsory; but whether it was or not, the executor liad the right to have the money refunded, since the statute was intended for the benefit of a party *415who pays an illegal tax voluntarily, as well as one who pays under what the law terms duress.
“ This proceeding was not governed by the technical rules that apply to actions at law to recover money voluntarily paid, qr to suits in equity to remove a cloud upon title. The statute furnishes,,a,_ convenient and summary remedy which enables the county to restore, without litigation or expense, what it ought not to retain; and a citizen who has paid an illegal tax, without waiting to have his property advertised and sold, to obtain justice.
“ The benefits of the statute are not confined to parties who have paid an illegal tax upon compulsion, but extend to all persons who have paid taxes that they were not legally bound to pay.”
It is difficult to see how words could have been chosen to express more clearly the holding of the Court of Appeals that it is no defense to this application that the payment was voluntary. ■ It is argued that in that case there were facts to show that that payment was not a voluntary payment, and that the decision of the Appellate Division had been put upon that ground. Granted. But the Court of Appeals has chosen to place its decision upon a different ground. That it has passed over the ground of the decision in the court below, and has placed its decision upon the broader ground that the statute was made for those who paid voluntarily as well as those who paid by compulsion, makes their decision the more emphatic. It is to me a new rule of interpretation to hold that a decision is not an authority for the rule of law upon which it is expressly based because it might have been placed upon a different ground.
It is further argued in the prevailing opinion in this case that because the tax was in fact paid by the occupant,of the premises he is not within the intended protection of the statute. The logic of this proposition I am unable to follow. A man, because he is the occupant of land owned by a resident taxpayer, is in no way liable to pay. the tax It is said, however, that it is inferable that he had some interest in the premises, as owner or otherwise, which led him to pay. This inference is just as proper in every case where a tax, legal or illegal, is paid. But assume for the argument that this plaintiff was the owner. He still comes within the express provisions of the act. He is entitled to recover under the act the *416amount of any tax collected of him which has been “ illegally or improperly assessed or levied.” In Adams v. Supervisors (supra) the court distinctly recognizes the right of an owner to recover back an illegal tax which has been collected of him, where it says: “ The statute furnishes a convenient and summary remedy which enables * * * a citizen who has paid an illegal tax without waiting to have his property advertised and sold, to obtain justice.”
Of the wisdom of the statute we are not to judge. The cases cited in the prevailing opinion, where actions were brought to recover .taxes paid upon illegal assessments, are not in point. The rule of law in such cases is not questioned. As held in the Adams case, this statute was intended to assure to the taxpayer greater rights than he had in an action at law.
That the tax was illegally assessed is conceded. That the plaintiff paid it is conceded. • These facts satisfy the conditions of the statute, and assure to the plaintiff its benefits.
I think the decision below was right.
Order reversed, with ten • dollars costs and disbursements, and motion denied, with ten dollars costs. "