illegal assessment, lies. 121 (1885); affirming 26

Temple Grove Seminary v. Cramer, 98 N. Y. Hun, 309 (1887).

Where an assessment and sale were illegal and void, but the statute (Laws 1867, chap. 858, § 10) made the county treasurer's deed prima facie evidence of the regularity of the prior proceedings,- held, that it constituted a cloud on the title. Stewart v. Crysler, 100 N. Y. 378 (1885); reversing in effect 21 Hun, 285 (1880).

The fact that the time for redemption had not expired, and that notice to redeem and the record of nonredemption thereupon were essential to make out a valid title under the sale,- held, that a suit in equity will lie to remove such cloud. Id.

No injunction should issue to restrain the collection of taxes except under circumstances of great necessity to prevent irreparable damage. Rome, Watertown, etc., R. R. Co. v. Smith, 39 Hun, 332 (1886); affirmed in 101 N. Y. 684 (1886).

Every assessment-roll is presumed to be legal and valid until the contrary appears. Tifft v. City of Buffalo, S N. Y. St. Repr. 325 (1887). The presumption being in favor of the regular and valid execution of the laws concerning taxation, the court will not, on the decision of a motion for an injunction against the collection of a tax, review the action of the assessors. Gilman v. Gillman, 8 N. Y. St. Repr. 836 (1887).

The rule that a suit in equity will not lie to set aside an assessment, invalid upon its face,- held, not to apply to an assessment for certain work, void under the charter of the city of Buffalo, because notice of the intention to order the work was not published, there being no requirement to attach the proof of publication to the assessment-roll. Tifft v. Buffalo, 27 N. Y. St. Repr. 72; S. C., 7 N. Y. Supp. 633 (1889).

It seems where an assessment has been paid, a court of equity has no jurisdiction of an action brought simply to have it set aside. Diefenthaler v. Mayor, 111 N. Y. 331 (1889).

An action will not lie to enjoin the enforcement and collection of a general tax on the ground that the assessment was void because the assessors, although assuming to act under the color of an election, were not entitled to exercise the functions of the office. D. & H. Canal Co. v. Atkins, 48 Hun, 456 (1888).

An action will not lie to restrain the cancellation of a tax and to declare it null and void on ground that assessment was too large and that two of the persons making it were not assessors de jure or de facto. D. & H. Canal Co. v. Atkins, 121 N. Y. 246; S. C., 30 N. Y. St. Repr. 928 (1890).

A temporary injunction sought to restrain the collection of a tax adjudged illegal, at Special Term, the order of which was reversed by the General Term, was held to have been properly denied. D., L. & W. R. R. Co. v. Gordon, 46 N. Y. St. Repr. 733; S. C., 19 N. Y. Supp. 533 (1892).

The court has no jurisdiction, under Laws 1883, to restrain by injunction the collection of an assessment for an improvement where no

statutory objections have been filed and the work has been performed and accepted. Matter of Bridgford, 47 N. Y. St. Repr. 676 (1892).

If the tax be illegal, payment under process of the city chamberlain is involuntary and the money may be recovered back. Id.

Mere proof that an assessment is illegal is not sufficient ground for an action to restrain the collection of the tax. Postal Tel. Cable Co. v. Grant, 33 N. Y. St. Repr. 997; S. C., 11 N. Y. Supp. 323; appeal dismissed, 128 N. Y. 633 (1890).

3. Proceedings by Writ of Mandamus.

A mandamus lies to the board of supervisors to allow a claim which is legally a county charge, without, however, controlling their judgment and discretion as to the amount proper to be allowed. Bright v. Supervisors of Chenango, 18 Johns. 242 (1820); Hull v. Supervisors of Oneida, 19 id. 259 (1821); People ex rel. Phoenix v. Supervisors of New York, 1 Hill, 362 (1841).

Mandamus does not lie where the party has a remedy by action. Matter of Boyce, 2 Cow. 444 (1824).

Mandamus lies where no other remedy at law exists. That redress may be had in equity, or that the party offending may be punished criminally is not a conclusive objection to the writ. People ex rel. Moulton v. Mayor, etc., of New York, 10 Wend. 395 (1833).

Where a statute authorized a city to sell lands for taxes, and to execute a lease unless they were redeemed within a specified time,- held, that the required notice to redeem not having been given, mandamus to execute such lease would not issue in favor of the purchaser. Id.

Where the charter of a city gave the common council the exclusive control and direction as to the assessment and collection of the city taxes, and the illegality appeared on the face of the warrant for the collection of the city taxes,- held, that a mandamus could have been issued to compel that body to correct their assessment and taxation of the property of a bank, if it was illegal. Bank of Utica v. City of Utica, 4 Paige, 399 (1834).

And where the alternative writ demanded too much, as in calling upon the supervisors to raise a particular sum to repair a bridge instead of requiring them to cause the bridge to be repaired as a county charge,held, that the mandamus should be dismissed. People ex rel. Commrs. v. Supervisors of Dutchess, 1 Hill, 50 (1841).

The relator can obtain only the relief demanded in the alternative writ. People ex rel. Olmsted v. Supervisors of Westchester, 12 Barb. 446 (1852). See, also, the next case cited.

The issue of the writ of mandamus to correct an assessment is in the discretion of the court. People ex rel. Lorillard v. Supervisors of Westchester, 15 Barb. 607 (1853).

Requisites to sustain the writ of mandamus stated. Id.

An alternative mandamus must state the facts particularly. Id.

A general assertion that injustice has been done the relators in assessing their property, or that they have been unjustly assessed, and that the board of supervisors have refused to correct the erroneous assessments is not sufficient. Id.

Mandamus will not be granted to supervisors to cause an assessment to be corrected, after the roll has been delivered with the warrant to the collector, since it has then passed from their jurisdiction. Id.

The supervisors of a county can be compelled by mandamus to issue warrants for a tax imposed by the legislature. People ex rel. Scott v. Supervisors of Chenango, 8 N. Y. 317 (1853).

As a general rule the writ of mandamus will not lie where the party aggrieved has an ample remedy by an action at law. People ex rel. Mygatt v. Supervisors of Chenango, 11 N. Y, 563 (1854).

A mandamus will only lie to give effect to a clear legal right. Id. For the assessment of a tax on the personal estate of a nonresident which has been collected by the seizure and sale of his property, the assessors of the town are liable in an action for the amount of the tax and expenses of the collection. In such case, however, the supervisors of the county cannot be compelled by mandamus to allow to the person thus wrongfully assessed, the amount of the tax collected from him, and to direct it to be levied upon the town or county, though it was collected under their warrant to the collector. Id.

Mandamus will not issue to supervisors to correct the roll after the warrants have issued to the collector. Colonial Life Assur. Co. v. Supervisors of New York, 24 Barb. 166 (1856); 4 Abb. Pr. 84 (1856); 13 How. Pr. 305 (1856).

Mandamus will not lie to strike the name of a corporation from the roll where no affidavit that it is in the receipt of no income or profits has been duly presented. Id.

A nonresident may have mandamus against assessors to have his name stricken from the roll if he is illegally assessed. People ex rel. Lincoln v. Barton, 44 Barb. 148 (1865).

Mandamus may issue on the relation of a taxpayer to compel the county treasurer to issue his warrant to collect a tax on debts due to nonresidents. People ex rel. Stephens v. Halsey, 37 N. Y. 344 (1867); affirming 53 Barb. 547 (1867).

The court may, by mandamus, compel assessors to proceed and examine the evidence, and determine the fact whether the consent in writing of a majority of the taxpayers owning more than half the taxable property has been obtained, and, if from their determination it appears that the requisite consent has been given, to make affidavit in accordance therewith, but, the assessors having determined to the contrary, and refused to make the affidavit,- held, that the court would not, however clearly it was made to appear that such consent had been obtained, grant a mandamus to them to determine the matter against their own conclusions, and make affidavit to that determination. Howland v. Eldredge, 43 N. Y. 457 (1871).

Mandamus will lie against a board of supervisors refusing to repay an assessment upon United States bonds under Laws 1867, chap. 938, commanding them to exercise their discretion in deciding the fact, and if the claimant has paid such tax, to allow the claim and levy the amount thereof. The only questions to be considered are whether the claimant was paid such tax, and, if so, the amount. People ex rel. Otsego County Bank v. Supervisors of Otsego, 51 N. Y. 401 (1873).

The answer to a mandamus to compel assessors to swear to a roll in the statutory form, which answer sets forth that they did not comply with the statute in making the assessment,- held, conclusive, and that a peremptory mandamus should not issue. People ex rel. Supervisors of Westchester v. Fowler, 55 N. Y. 252 (1873).

A collector who had collected a tax imposed by statute, which directed its payment to a railroad company, cannot question the validity of the proceedings preliminary to the collection nor refuse the right of the company to receive the money, upon mandamus to command him to pay it over. People ex rel. Martin v. Brown, 55 N. Y. 180 (1873).

Upon the hearing, the answering affidavits, which are neither traversed nor confessed and avoided, must be taken as true. Id.

Where an act of the legislature directs an officer of a municipal corporation to sign a warrant for the payment of public moneys already raised by taxation, a proceeding by mandamus is the proper one to compel him to sign it. People ex rel. New York & Harlem R. R. Co. v. Havemeyer, 3 Hun, 97, note (1874).

Though an action might be brought to enforce payment by the corporation, that fact does not preclude proceeding by mandamus. Id.

A mandamus will lie against the board of supervisors to compel compliance with the order of a County Court, under Laws 1871, chap. 695, directing the amount of an erroneous assessment to be refunded. People ex rel. Pells v. Supervisors of Ulster, 65 N. Y. 300 (1875); reversing 63 Barb. 83 (1872), on the point that that court had held the statute to act prospectively only; limited on this point in Hermance v. Supervisors of Ulster, 71 N. Y. 481 (1877); affirming 10 Hun, 545 (1877), as to the correction of clerical errors.

The mandamus against the supervisors of a county authorized by Laws 1873, chap. 119, is properly brought, notwithstanding the fact that the assessors of one of the towns had no jurisdiction to make the assessment, and that the relator has a cause of action against them. People ex rel. Witherbee v. Supervisors, 70 N. Y. 238 (1877).

Where the legal right is disputed, an alternative writ, and not a peremptory one, should issue. People ex rel. Mott v. Supervisors of Greene, 64 N. Y. 600 (1876); modifying 5 Hun, 650 (1875).

Death of one of several copartners, petitioners in mandamus, after return to an alternative writ does not abate the writ. People ex rel. Witherbee v. Supervisors, 70 N. Y. 228 (1877).

Upon appeal to the Court of Appeals upon the return to a mandamus

to supervisors to review an assessment, the respondents have the right to urge any consideration which they might have offered to the General Term. Id.

Upon mandamus to a board of supervisors to carry out the determination of the State assessors, the objection that supervisors of several towns united in procuring the writ is not available after the board of supervisors has submitted to answer. It seems that if including the grievances of different towns in one writ was erroneous, the objection should have been taken by motion to quash. People ex rel. Robinson v. Supervisors of Ontario, 85 N. Y. 323 (1881); reversing 17 Hun, 501 (1879). It is no bar to mandamus that an action could have been maintained against assessors to recover back taxes illegally exacted. People ex rel. Witherbee v. Supervisors of Essex, 85 N. Y. 612 (1881).

Mandamus is the proper remedy to compel a tax receiver to accept payment of and discharge a tax. Clementi, in re, v. Jackson, 92 N. Y. 591 (1883); People ex rel. Townshend v. Cady, 18 Jones & S. 399 (1884); affirmed in 99 N. Y. 620 (1885).

Mandamus will lie to compel the proper officer to receive a tax to discharge the lien upon property occasioned by its nonpayment, though more than ten years have elapsed since the tax was imposed. Id.

The tax being admitted to have once existed, it will be presumed, in the absence of proof to the contrary, that it continues unpaid. Id.

The comptroller cannot be required by mandamus to vacate a tax sale at the instance of a mortgagee, whose application for such action he has denied. People ex rel. Equitable Life Assurance Soc. v. Chapin, 103 N. Y. 635 (1886).

Mandamus lies under Laws 1885, chap. 405, page 696, to compel the registrar of arrears of the city of Brooklyn to cancel all sales for taxes made eight years before the passage of that statute, on which leases shall not have been delivered or demanded within six months after its passage. People ex rel. Andrews v. Jackson, 1 N. Y. St. Repr. 491 (1886).

The discretion of the Supreme Court to grant or refuse mandamus is not absolute, but is subject to review by the Court of Appeals. People ex rel. Millard v. Chapin, 104 N. Y. 96; reversing 40 Hun, 386 (1887).

The writ should not issue after the period fixed as a bar for actions has expired. Id.

Mandamus is the proper remedy to put the State comptroller in motion when he refuses to entertain or act upon an application for the cancellation of a tax sale and refunding the purchase money under Laws 1855, chap. 427. People ex rel. Ostrander v. Chapin, 105 N. Y. 309 (1887). Where, after a tax has been properly apportioned between a larger and smaller parcel, the amounts are by mistake transposed, and the owner of the larger parcel, with knowledge of the error, pays the smaller amount, after which the error is, by direction of the court, corrected, and the larger amount imposed upon his lot, less the amount paid, a mandamus will not lie at his instance to compel the cancellation of the tax on the