Opinion by DAVIES, Ch.J.

found by the referee-namely, that all the stone called for by the contract was furnished by the Plaintiff and Reynolds, as required by it.

The exclusion of the question, upon this finding of facts, worked no injury to the Defendants, and presents therefore no ground for granting a new trial.

The judgment should therefore be affirmed, with costs.

All affirm.

JOEL TIFFANY,

State Reporter.

Opinion by PARKER, J.

DAVID C. FOSTER, APPELLANT, V. CORNELIUS VAN WYCK ET AL., ASSESSORS, &c., RESPONDENTS.

V.

GEORGE VAN KLEECK, APPELLANT, v. FREDERICK WOODRUFF, COLLECTOR, &c., RESPONDENT.

CHARLES W. SWIFT, APPELLANT, V. THE CITY OF POUGHKEEPSIE, RESPONDENT.

Assessors, protected like all Judicial Officers.

It being the duty of assessors to ascertain and determine all taxable property, real or personal, within their town or ward, subject to taxation, they have jurisdiction to make the necessary investigation in respect to all property, and they are not liable for any errors they may commit in thus exercising the duties of their office. Their office, in this respect, is judicial, and in the discharge of its duties they are within the rule of protection extended to all judicial officers.

PARKER, J.-These are controversies submitted to the Supreme Court, without action, pursuant to section 372 of the Code.

The facts stated to the Court in the several submissions, which are substantially alike, show that the Plaintiffs are residents of the city of Poughkeepsie, and respectively owners of shares in three National Banks, organized under the act of Congress, approved June 3, 1864, and located in said city.

The assessors of that city, in the year 1865, assessed the Plaintiffs, respectively, for their shares in the said banks, at their par value. The Plaintiffs did not personally appear before the assessors, nor serve any claim or notice on them in reference to said assessment. The assessors made out an assessment roll in the form prescribed by statute, on which each of the Plaintiffs were assessed and taxed for other property; and at the close of the alphabetical list, and on a separate part of the roll, they inserted the names of the said National Banks, and the value of the real estate of each, and then, under the name of each bank so entered, they entered the names of the shareholders therein respectively, the numbers of the shares owned by each, and the par value

Opinion by PARKEP, J.

thereof; and the Common Council imposed and extended the tax upon the real estate of each bank, and upon each shareholder for the value of his shares so entered.

The cashiers of the banks, before the completion of the roll, notified the assessors that such last-mentioned assessments were illegal, and demanded that they should be stricken from the roll. This was refused by the direction of the Common Council; a warrant was issued to the collector, under the seal of the city and the hand of the mayor, attached to the assessment roll, and with it delivered to the collector, commanding him to receive, levy, and collect from the several persons therein named the several taxes therein imposed.

Under this warrant, the collector, on the 7th of June, 1866, levied and collected the several taxes imposed on such bank shares of the Plaintiffs, respectively, for their goods and chattels, and did forthwith pay the same to the chamberlain of said city, who is, ex-officio, treasurer thereof.

On the part of the Plaintiffs it is claimed that the said assessments, and all proceedings based thereon, were without jurisdiction and void; and that the levy on their goods and chattels, in pursuance of said warrant, and by direction of said city, was a trespass, for which the Defendants respectively are liable to the Plaintiffs, in the amount so collected from them.

On the other hand, the Defendants claim that the assessors had jurisdiction in the premises, and admitted that the bank shares were exempt from taxation; that the Defendants, respectively, are not liable to any action by reason of said assessments, &c., but that the Plaintiffs, having omitted to institute legal proceedings to compel the correction of said assessment roll, by the Court or otherwise, are remediless in the premises.

The Supreme Court held that the Plaintiffs were neither of them entitled to recover, and gave judgment for the Defendants respectively to that effect, and for costs.

From the judgment thus given the Plaintiffs severally appeal to this Court.

The question in each case is, did the assessors have jurisdiction

Opinion by PARKER, J.

in respect to the assessments complained of? for it is not denied, on the one hand, that under the decision of the Supreme Court of the United States, in Van Allen v. The Assessors (3 Wallace, 573), the assessment was unauthorized, and would have been set aside upon due application to the Supreme Court, as not being in accordance with law; nor, on the other, that if the assessors had jurisdiction in the matter, and have erred only in its exercise, the only remedy of the Plaintiffs was such application to set it aside; and that no action for the irregularity would lie against any of the Defendants; except that in the case of Swift v. The City of Poughkeepsie, it is claimed by the Plaintiff that, even if the assessors had jurisdiction, so that they and the collector are not liable, still as the Plaintiff was not legally liable to taxation on his bank shares, the city, which has received the money collected from him to satisfy such illegal tax, is legally liable to refund it to him.

That the assessor had jurisdiction in the matter cannot, I think, be successfully disputed.

Taxation of all property is the general rule of the statute. It provides as follows: "All lands, and all personal estate within this State, whether owned by individuals or corporations, shall be liable to taxation, subject to the exemptions hereinafter specified" (1 R. S. 387, § 1, 1st ed). By the same statute (p. 390, § 8), it is made the duty of the assessors "to ascertain, by diligent inquiry, the names of all the taxable inhabitants in their towns or wards, and also all the taxable property, real or personal, within the same." It is not denied that the assessors had jurisdiction of the Plaintiffs, as taxable inhabitants of their towns or wards. As to the property in question, it falls within the description of property declared by the first section of the act above quoted to be liable to taxation. It is "personal estate," as the same is defined by the third section of the act, the term including " public stocks," and "stocks in moneyed corporations." It may also fall within one of the exemptions; but being property primâ facie liable to taxation, and the duty of the assessors being to ascertain all the taxable property, real and personal, within their town or ward, this property, held by residents of their town, presents itself to them

Opinion by PARKER, J.

for their decision whether it is taxable or exempt from taxation. That it shall turn out to be exempt from taxation does not exempt it from the scrutiny required of them by the statute, to ascertain whether or not it is taxable. Being personal property within their town or ward, it is within their jurisdiction as assessors; they have the right, and it is their duty, to examine the question whether it is liable to taxation, and this is a judicial inquiry (1 Kern. 593; 3 Denio, 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 (Chegary v. Jenkins, 1 Seld. 376; Barhyte v. Shepherd, 35 N. Y. R. 238; Vail v. Owen, 19 Barb. 22; The Rochester White-Lead Co. v. The City of Rochester, 3 Coms. 463).

One of the classes of property expressly exempted by § 4 of the act from taxation is, "Every building erected for the use of a college, incorporated academy, or other seminary of learning." In Chegary 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 Caines' R. 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. R. 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