
    (80 Hun, 122.)
    In re PEEK.
    (Supreme Court, General Term, Third Department.
    July 14, 1894.)
    1. Taxation—Assessment—Presumption op Legality.
    Where property is situated, and the owner resides, within the territorial jurisdiction of the assessors, it will be presumed that the assessment was legally made.
    2. Same—Collateral Attack.
    Where part of the price of land was paid with pension money, whereby the land is to that extent exempt from taxation, the assessors act judicially in assessing the taxable portion, and their determination cannot be collaterally attacked.
    8. Same—Extent op Exemption.
    Land purchased partly with pension money is exempt from taxation only to the amount of pension money used in the purchase.
    'Appeal from Schenectady county court.
    Application by Caroline Peek for an order directing the board of supervisors of Schenectady county to refund taxes alleged to have been illegally assessed and collected of said petitioner. Prom an order in favor of petitioner, the board of supervisors appeals.. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Louis M. King (Alonzo P. Strong, of counsel), for appellant.
    A. M. Vedder, for respondent.
   MAYHAM, P. J.

The petitioner and respondent in these proceedings received from the United States government, as the widow of a deceased soldier, $2,700 pension money, and thereafter purchased a house and lot in the city of Schenectady, agreeing to pay therefor the sum of $1,450, on which she paid $1,000 of the pension money, and gave a purchase-money mortgage on the premises for the remaining $450 of the purchase price. In 1891 the assessors . of Schenectady assessed the premises to the petitioner at $800, on which she paid a tax of $13.44, and again, in 1892, the assessors-assessed the premises at $700, on which she paid a tax of $11.27. No objection was made before the board of assessors, on grievance day, to either of these assessments, and, so far as appears from the record, these taxes were paid without protest or objection by the petitioner. On the 26th of December, 1893, the respondent presented her petition to the county court of Schenectady county, alleging, in substance, the above facts as to her purchase of the house and lot, and the assessment and collection of the taxes thereon against her, and praying an order of that court directing the board of supervisors to refund such tax to her. The county court thereupon granted an order requiring the supervisors to show cause before it, on the return of which the supervisors answered the allegations of the petition, and the court, after hearing the proofs of the-parties, made an order directing the supervisors to refund such tax. From that order the supervisors appeal. It is insisted, on this appeal, that the evidence did not justify the conclusion of the county court that this tax was illegally and improperly levied. It is only when the tax is “illegally or improperly assessed or levied” that the county court can order the supervisors to return it

The tax having been assessed and collected by public officers charged with the performance of that public duty, and such officers having jurisdiction of the person and subject-matter by reason of the residence of the petitioner and the location of the property within the territorial jurisdiction of the assessors who made the assessment, and of the supervisors who levied the tax, the presumption of law is that they did their duty, and that the tax was legally assessed and collected, and the burden of proving its illegality is cast upon the petitioner. We think she failed in establishing that affirmative proposition. It does not seem to be denied by the appellant, and we think it must be conceded, that the petitioner is entitled to an exemption from taxation on this land to the extent of $1,000 of its value, as she had invested that amount of her pension money in its purchase. By part 1, c. 13, tit. 1, § 1, of the Revised Statutes, it is provided that “all lands * * * within this state whether owned by individuals or corporations shall be liable to taxation, subject to the exemptions hereinafter provided.” Under this provision of law, the assessors were called upon to assess only such real property as was owned by the petitioner, and could not lawfully assess property owned by her which was exempt from taxation, and their affidavit to the assessment roll can only be construed to embrace and refer to property of the petitioner which was not exempted by law from taxation; and, applying the rule of presumption to which we have referred, in the absence of any evidence to the contrary, we must assume that they allowed the exemption, and levied their assessment upon the balance of the real property owned by the petitioner, after deducting the value of the exemption from the value of the whole of the real estate owned by her. Hartwell v. Root, 19 Johns. 345; People v. Carpenter, 24 N. Y. 92; Leland v. Cameron, 31 N. Y. 122; Wood v. Morehouse, 45 N. Y. 368-375. It was the duty of the assessors to ascertain and assess the value of the real property of the petitioner not exempt from taxation; and having, as we have seen, jurisdiction of the party and the subject-matter, their judgment on that subject, fixing the value of such property for the purpose of taxation, was of a judicial character, amounting to a valid adjudication, and, until reversed or set aside upon a direct proceeding for that purpose, is conclusive, and cannot be assailed in a collateral proceeding. This rule is too well settled, upon authority, to require the citation of many authorities. In the somewhat recent case of Mayor v. Davenport, 92 N. Y. 610, this doctrine was stated as follows:

“The assessors of the several towns first make out their rolls, and determine the valuations. In this respect they act judicially, and any erroneous decision can only be corrected by a direct review of their proceedings whenever they have kept within their jurisdiction. If they have so acted, their conclusions cannot be assailed, either by suit at law against them or against those who take the further steps towards collection based upon their action.”

And this doctrine is well buttressed by the authorities cited by Judge Pinch in his opinion. It follows that when part of a taxpayer’s property is exempt by law from taxation, and a portion of the same is liable to be taxed, the assessors must act judicially in determining the portion to be assessed and taxed. Weaver v. Devendorf, 3 Denio, 119, 120; Vail v. Owen, 19 Barb. 22; Barhyte v. Shepherd, 35 N. Y. 238. It appears to be contended in this matter, by the learned counsel for the respondent, that, as some of the pension money of the petitioner went into the purchase of this real property, that fact gave immunity to the whole property from taxation. We cannot concur in that doctrine to the extent contended for by the counsel. It is quite true that if the $1,000 pension money paid upon this property had covered its full value, and left no margin of value beyond that amount, the whole property would have been exempt from taxation, and the petitioner would not, in that event, have been a taxable inhabitant of the city of Schenectady, and the assessors would have acquired no jurisdiction, either of her person or property, to make an assessment against her. But that fact the petitioner would be required to establish by proof. ¡ None of the cases cited by the learned counsel for the respondent J hold that the county court has power, under the provision of section 16 of chapter 686 of the Laws of 1892, to compel a restoration of tax based upon an assessment when the assessors had jurisdiction to make an assessment. The only evidence of value of this real property before the county court or this court is that the petitioner paid $1,450 for it. Of that sum $1,000 was represented by the pension money, leaving the assessors to fix the value of the balance above the $1,000. Of that value they were made the sole and ex- I elusive judges, in the absence of any proof before them, on griev- ! anee day, that their estimate was an overvaluation. No such proof was given or offered, and it follows, therefore, that the value of the petitioner’s real property liable to taxation was, in 1891, $800, and, in 1892, $700, and that the order of the county court directing the supervisors to refund the tax paid upon such assessment was erroneous, and should be reversed. Order reversed, with $10 costs and printing disbursements. All concur.  