Newman v. Board of Supervisors

1 Lans. 476

• Court: New York Supreme Court
• Decided: September 15, 1869
• Status: Published

Opinion

Present — E. D. Smith, Dwight and Johnson, JJ.

By the Court

Johnson, J.

This is an action brought against the county of Livingston to recover certain moneys collected by the town collector of the town of Lima, in which the plaintiff resided, and paid over to the county treasurer of such county. The amount claimed is part only of the general tax, levied against the plaintiff for the year 1867, and collected and paid over as aforesaid. This amount it is alleged, was illegally, and without warrant or authority of law, added to the amount lawfully assessed against the plaintiff, and placed in the tax column of the assessment roll by the board of supervisors of said county. Taking all that is alleged in the complaint to be true, it is clear, I think, that the action to recover back that money cannot be maintained since the decision of the Court of Appeals in Swift v. The City of Poughkeepsie (37 N. Y. R., 511). Bacon, J., in delivering the opinion of the court in that case, says: “ Ho suit to recover taxes erroneously assessed and paid over to a county, or municipal corporation, has yet been sustained in this State, whatever may be the rule elsewhere.” The action in that ease was, like the action here, to recover back money alleged to have been wrongfully assessed and collected, after it had been paid over to the treasurer. The decision in that case is put upon the broad ground that no such action will lie. It is said in the opinion, which was concurred in unanimously, that “ nothing is better settled, than that no action will lie to recover back money collected by virtue of legal proceedings, unless such proceedings can be impeached, as founded on fraud, imposition, or extortion.” And again, “a party cannot proceed a single step, in such an action if, in order to sustain it, the court is called upon to review the merits, or the regularity of the proceedings, or determination, as the result of which the money was collected and paid over.” These principles clearly cover this action. It is said by the plaintiff’s counsel, that the case referred to, was the case of an illegal assessment, by the assessors, who had jurisdiction generally to make assessments, and is not like the case at bar. But the cases are not distinguishable in their cardinal features, which determine the right of action. There, the assessors had assessed property not liable to be assessed for the purposes of taxation. Here the board of supervisors have estimated, and set down in the tax column of the assessment roll, a greater sum than was proper, or added an item to the tax which they were not authorized to add. All that can be said of it is, that in doing this, they committed an error, which upon review in a proper manner, might have been corrected. It is made the duty of the board to examine all the assessment rolls, and they, are authorized to increase or diminish the aggregate valuations of real estate in any town, or ward, in such a manner as to produce a just relation between all the valuations in the county (1 R. S., 395, § 31.) They are also required to estimate and set down in a fifth column in the assessment roll, opposite to the, several sums set down as the valuations of real and personal estate, the respective sums in dollars and cents to be paid as a tax thereon. (Id., § 33.) This perfects and completes the judgment, so to speak, upon which the warrant is issued to the several collectors; and, conceding that the item complained of was erroneously estimated, and set down in the tax column as part and parcel of the sum to be paid as a tax by the plaintiff, it does not lay the foundation for an action of this character. It is an error or irregularity which the court will not review in an action like this. The ■ board of supervisors clearly had jurisdiction to estimate and set down in the tax column the sum to be paid as a tax by the plaintiff; and even if they erred in adding an improper item as part of the sum, this is not the proper mode of redress. So much, I think, must he regarded as settled by the decision above referred to. It is proper to consider this question here, because, if I am right, it is available to the defendant on the plaintiff’s demurrer to the third answer. It is a well settled principle, that upon the hearing and determination of a demurrer to any pleading, the court will give judgment against the party who has committed the first error in pleading. No court should ever sustain a demurrer to an answer put in to a complaint which clearly contains no cause of action. To do so would have the effect to continue and protract abortive and fruitless litigation, and violate long established rules in such cases. The learned judge at Special Term sustained the demurrer on the ground that it was not to the whole defence set up in all the answers. It was conceded by him that if it had been, judgment ought to be given for the defendant, for the reason that no cause of action was alleged in the complaint. But I do not understand that the rule was ever so limited. If the complaint contains no cause of action, the court will not stop to consider whether any one of several answers is proper or not. There is nothing to be considered in such a case, as to the sufficiency of the answer. There is nothing to be answered, and one answer is as good as another. I am of the opinion, therefore, that the demurrer should have been overruled. For the same reason the motion to strike out the first answer, as irrelevant and frivolous, should have been denied, as the motion to strike out the second answer was, as not being sham, frivolous or irrelevant. Nothing of the kind can possibly be predicated of an answer to a complaint which contains no cause of action whatever. This must be obvious to every legal mind, and needs no comment to render it evident. I am of the opinion, therefore, that the order refusing to strike out the second answer should be affirmed, and that the order striking out the first answer should be reversed. The order sustaining the demurrer should also be reversed, and judgment ordered for the defendant.

Ordered accordingly.