Foster v. Van Wyck.

amine the question whether it is liable to taxation, and this is a judicial inquiry (11 N. Y. [1 Kern.], 593; 3 Den., 117)-one, it may be remarked, in which the highest courts have differed; and should they make a mistake, and hold it liable to taxation when it is not, surely they should not, for such mistake, be held liable as wrong-doers (Chegaray v. Jenkins (5 N. Y. [1 Seld.], 376; Barhyte v. Shepherd, 35 N. Y., 238; Vail v. Owen, 19 Barb., 22; Rochester White Lead Co. v. City of Rochester, 3 N. Y. [3 Comst.], 463).

One of the classes of property expressly exempted by section 4 of the act from taxation is, "Every building erected for the use of a college, incorporated academy, or other seminary of learning." In Chegaray v. Jenkins (supra), the building occupied by the plaintiff as a young ladies' boarding and day school, was taxed, she claiming that it was exempt; and the collector levied on her property to collect the tax. Judge RUGGLES, in his opinion, discussing the question of jurisdiction, says: "The assessors, in determining whether the plaintiff's property was taxable as a dwelling, or exempt as a seminary of learning, acted judicially, and within the sphere of their duty.

Having the general authority to make assessments for taxation within the ward in which the plaintiff's property was situated, they had jurisdiction of the subject-matter of the assessment in question." See also Henderson v. Brown (1 Cai., 92). Section 4 of the act in effect allows ministers of the gospel to hold property to the amount of $1,500 exempt from taxation. In Barhyte v. Shepherd (35 N. Y., 238), the plaintiff, a minister of the gospel, sued the assessors for refusing to exempt him from taxation, although his real and personal estate were worth less than $1,500; and it was held that the assessors had jurisdiction to decide whether the plaintiff's property was exempt or not; and in so deciding acted judicially, and were not liable} for assessing the plaintiff upon his property, even though it was exempt from taxation.

It cannot be said that the bank shares in these cases were any more absolutely exempt from taxation than "

"a

.

Foster v. Van Wyck.

building erected for the use of a seminary of learning," or the farm of a minister of the gospel, occupied by him, and of a value not exceeding $1,500. If the building on the farm turns out to be exempt, because found to be in the category of exemptions, it is as absolutely non-taxable as the bank shares in question; and yet the assessors are not liable for improperly including it in the assessment, because they are invested by the statute with the authority to decide what property is taxable, and in so deciding act judicially.

It can make no difference, I apprehend, in regard to the assessors' jurisdiction, whether this immunity from taxation arises from State law or national law. In either case, the question of liability to taxation is to be determined by the assessors, and they have, of course, jurisdiction to decide it.

It is equally a judicial decision in either case, having equal protection from liability for having decided erroneously.

It is impossible to make any distinction, in respect to the subject under consideration, between the case at bar and the cases last cited; and, as was said by Judge LEONARD in Barhyte v. Shepherd, after remarking upon the holding in Mygatt v. Washburn (15 N. Y., 316), that assessors have no jurisdiction to assess a non-resident for personal property: "It is not necessary to extend the ap plication of the rule on any ground of public policy, that I can perceive, so as to include cases of mistake in deciding a claim to exemption, where the person and estate of the party are within the jurisdiction of the assessor."

The circumstance that the assessment of the bank shares was separate from the other personal property of the plaintiffs, and specifically upon the shares, does not affect the question of jurisdiction. If the assessors, having jurisdiction of the subject-matter, and of the persons of the plaintiffs, have failed to follow the directions of the statute in making up their roll, their action was irregular, and open to correction upon proper application to the su

Foster v. Van Wyck.

preme court; voidable, but not void (Easton v. Calendar, 11 Wend., 91, 95; Cunningham v. Bucklin, 8 Cow., 178; Wilson v. Mayor, &c. of N. Y., 1 Den., 595, 599; Butler v. Potter, 17 Johns., 145; and cases above cited). The rule is stated in Easton v. Calendar as follows: "Where the magistrate or officer has jurisdiction of the subject-matter, and errs only in the exercise of it, his acts are not void, but voidable, and the only remedy is by certiorari or writ of error."

In regard to the liability of the city of Poughkeepsie to refund the taxes paid into its treasury, and under the assessments in question, I am unable to see how it can be. The assessment was not void, but irregular or erroneous; and the only mode of avoiding such an assessment is by an application to the assessors, or by a proceeding in the supreme court to correct the errors or irregularities while the assessment stands unreversed; it is as effectual to protect not only those by whom it was made and executed, but all persons claiming under it, as a judgment of a court having jurisdiction. It would be an error to hold that no liability attached to those who instituted and carried out the proceedings to compel the payment of the money by the plaintiffs (there being no statutory protection), and yet that the individual or corporation who received it is legally liable to refund it.

The cases cited by the learned counsel for the appellants, holding that "when a tax has been illegally assessed and collected, the money may be recovered back," are cases where there was, in the view of the court, a want of jurisdiction. In Osborn v. Danvers (6 Pick., 89), it was held that when a taxable inhabitant is overrated by assessors, whether by including in the valuation property of which he is not the owner, or that for which he is not liable to be taxed, that does not render the assessment invalid or void, and his only remedy is by application to the assessors, or the court of sessions, which is authorized to relieve in such cases, and not by an action for money had and received.

Davis v. Duflie.

I am of the opinion that the judgment appealed from should be affirmed.

As to the case of Foster v. Van Wyck, and Van Kleeck v. Woodruff, all the judges concur in affirming the judg ments.

As to the case of Swift v. City of Poughkeepsie, a sufficient number of judges to give a judgment failing to concur, a reargument in that case is ordered.*

Judgment affirmed in the first and second cases, and reargument ordered in the third case.

DAVIS against DUFFIE.

Court of Appeals; June Term, 1867.

SERVICE OF PROCESS.-CIVIL DEATH OF CONVICT.CUMULATIVE REMEDIES..

Service of process upon a convict in the State prison is valid, and gives the court jurisdiction.

The suspension of civil rights which the statute (2 Rev. Stat., 701, § 19) declares to be the effect of a sentence to State prison, does not give him any immunity from actions, nor suspend the rights of others.

The statute allowing such prisoners to be proceeded against as absent debtors, is not exclusive of the ordinary remedy by action.

Appeal from an order for a new trial.

This action was brought by Smith and Oliver Davis, in the superior court of the city of New York, against Cornelius R. Duffie and others, to redeem certain lots and

*That cause was finally determined in favor of the defendants also. The judgment of the court of appeals thereon is reported in 37 N. Y., 511.

Davis v. Dullie.

premises, situated in said city, from the effect and lien of a mortgage covering the same, made by the plaintiff, Smith Davis, to the defendant, Cornelius R. Duffie, dated March 8, 1838, which mortgage was given to secure the payment of $100, and interest, within two years from its date.

The court at special term gave judgment for the plaintiffs,-holding that they were entitled to redeem the premises from the lien of the mortgage, and determining the rights of the parties defendant, who had acquired an interest therein. The decision is reported in 18 Abb. Pr., 360.

On appeal the general term reversed the judgment, and ordered a new trial. The decision is reported in 8 Bosw., 617. Thereupon the plaintiffs appealed to this court, stipulating that, in case the order should be affirmed, judgment absolute might be rendered against them.

Edmonds & Field, for the plaintiffs, appellants.-I. The service on Davis in prison was void (2 Rev. Stat., 701, § 19; and see Troup v. Wood, 4 Johns. Ch., 228; O'Brien v. Hagan, 1 Duer, 664; Freeman v. Frank, 10 Abb. Pr., 370; Miller v. Finkle, 1 Park. Cr., 374). The effect on a convict for a term of years is the same as on one for life. The only way for the mortgagee to proceed against the mortgagor was under the statute as against an absconding debtor (2 Rev. Stat., 15, Art. II.).

II. The statute of limitations is no bar.

H. W. Robinson, and Messrs. Owen and Mitchell, for the respondents.-The service in prison was valid and regular (Hoffm. Ch. Pr., 109; 1 Dan. Ch. Pr., 64, 566; 1 Barb. Ch. Pr., 50, 51; Hind's Ch. Pr., 85; Johnson v. Johnson, Walk. [Mic.] Ch., 309; Phelps v. Phelps, 7 Paige, 150; Joyce v. Joyce, 1 Hogan, 121). 1. The attainder did not affect the prisoner's liability (1 Chitt. Cr. L., 725; 1 Chilt. on Contr., 184; 1 Chitt. Pl., 481; Foster's Crown L., 61, 63; Bannyster v. Trussett, Cro. Eliz., 516; Hastings v. Blake, 1 Noy, 1; 1 Viner's Abr., "At