
    TUCKER v. CITY OF UTICA.
    (Supreme Court, Appellate Division, Fourth Department.
    December 9, 1898.)
    1. Taxation—Pension Money—Exemption.
    A city lot, paid for by the owner with pension money, is not exempt from local assessment for paving the street.
    2. Same—Jurisdiction of Assessors.
    A general assessment of property which was paid for only in part with pension money is not void for want of jurisdiction of .the assessors, the property being taxable on its value in excess of the pension money.
    3. Costs in Equity—Discretion of Court.
    Plaintiff sued on the equity side of the court to cancel a paving assessment of $99 and a general assessment of $10 on her land. The latter was canceled, and the former was not. Held not an abuse of discretion to refuse to award costs to either party.
    Appeal from special term, Oneida county.
    Action by Catherine M. Tucker against the city of Utica to have certain tax assessments canceled. Findings of fact and conclusions of law were made and filed, and a judgment entered thereon dismissing the plaintiff’s complaint as to the first cause of action, and awarding relief as to the second cause of action, to wit, declaring that an assessment for $10.41 is illegal and void. The court decided that neither party should have costs against the other. The plaintiff appeals from that part of the judgment which declares that the local assessment of $99.31 on the plaintiff’s property by reason of the asphalt pavement that was laid in Howard avenue, in front of her premises^ is valid. Affirmed. The defendant' appeals from that part of the judgment which declares that the assessment of 1894 was invalid, and restraining the defendant from the collection thereof.
    Reversed.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, and WARD, JJ.
    George C. Carter, for plaintiff.
    James Coupe, for defendant.
   HARDIN, P. J.

Plaintiff’s husband was a soldier in the war' of the Rebellion, having been a member of Company K, 5th regiment, New York volunteers. He died May 1, 1870, leaving the plaintiff, his widow, and three children under 16 years of act, to wit, Elma, who became 16 years of age November 5, 1870; Ada, who became 16 years of age August 11, 1872; and Emily, who became 16 years of age February 4, 1877. The United States government awarded to the widow a certificate for pension under which she drew $1,900, being $8 per month from May 2, 1870, and $12 per month from March 19, 1886. In the forepart of the year 1887 she entered into a contract for the purchase of a lot on Howard avenue at the price of $450. She paid on said contract, March 24, 1887, $200, and subsequently she paid the balance, and took a receipt for it, on May 23, 1887. In the year 1887 she commenced the construction of a house on the lot, which cost her $1,600. To make the payments for the purchase price of the lot and for the building of the house she used the pension money which she had received, amounting to $1,900. On the 7th day of July, 1887, she executed a mortgage upon the house and lot to one Oarr for $600, and she used a portion of that money towards building the house. After the house was built, she and her family occupied it for a home, and it was convenient and suitable for such purpose. On the 11th day of May, 1894, the city of Utica instituted proceedings to have Howard avenue paved with asphalt pavement. Sundry steps were taken in pursuance of the provisions of the charter of the city of Utica to assess two-thirds of the expense to the adjacent owners of lots on the avenue, the city bearing one-third of the expense. The proceedings resulted in assessment No. 88, which determined that the amount of the plaintiff’s share for the pavement was $99.31. After the assessment was made, a written notice was sent to the plaintiff of the assessment, and a request that she pay the same. See folios 329, 330. The plaintiff declined to pay the assessment, and took an appeal to the common council, and sought to avoid the assessment. Her appeal was unsuccessful, and the assessment remained unpaid at the commencement of this action. The learned counsel for 'the plaintiff contends that, because the property was paid for by the plaintiff to a large extent with pension money, the property is exempt from the local assessment for paving the street. His contention was overruled by the special term, and we think no error was committed in the holding made by the special term that the property was liable for the local assessment. In re Mayor of New York, 11 Johns. 77; Bleecker v. Ballou, 3 Wend. 264; Hassan v. City of Rochester, 67 N. Y. 528; Roosevelt Hospital v. Mayor, etc., 84 N. Y. 108; 1 Rev. St. p. 388, § 4, subd. 9; Laws 1896, c. 908, § 4, subd. 5. We think that part of the judgment appealed from by the plaintiff should be affirmed.

2. The defendant’s appeal being from that part of the judgment which declares the assessment of $10.41 illegal, it requires an examination of the circumstances attending the assessment of 1894 made by the assessors of the city of Utica. The property was placed upon the assessment roll at $500. It is contended in behalf of the defendant that, as some portion of the property owned by the plaintiff was paid for with money which she borrowed upon mortgage, the property was subject to assessment, and that, the assessors having jurisdiction, their action cannot be questioned in this action. In the second count of the complaint there was an allegation to the effect that the property was not assessable, because it was paid for by pension money. That allegation was denied in the general denial of all of the essential parts of the first count of the complaint. The plaintiff, however, in alleging his second cause of action, instead of realleging the allegations to which reference has been made, refers to them, and adopts them as a part of the second cause of action. Although that method is not in accord with the best system of pleading, the defendant does not seem to have taken advantage of the error of the plaintiff by any special motion. It did, however, upon the trial, evidently stand upon its denial of want of jurisdiction in the assessors. Indeed, it is apparent that both parties so construed the pleadings, and gave all the evidence that either desired upon the subject of whether the assessors had, in fact, jurisdiction at the time they made the assessment. The plaintiff’s allegation that the assessors acted "without jurisdiction fraudulently” must, under the circumstances, be regarded as a mere conclusion, based on the allegation that the property ■was partly paid for with pension money; and hence the assessors were without jurisdiction. 'Whether the assessors had jurisdiction or not was made a vital question upon the trial, and the evidence of the respective parties in relation thereto was given, and the question was submitted to the consideration of the court. The theory of the plaintiff’s complaint, and his argument before us, seem to be based upon the ground that the property was partly paid for by pension money, and that, therefore, the assessors had no jurisdiction. That position was controverted by the defendant, and the evidence sustains the contention made by the defendant that the plaintiff had an interest in the property which was not paid for by pension money. It is now well settled by authority that where only a portion of the property is paid for with pension money, the assessors have jurisdiction, and that it is the duty of the .pensioner who claims exemption to make manifest his position on grievance day. Swift v. City of Poughkeepsie, 37 N. Y. 511. No such objection appears to have been made by. the plaintiff in respect to the assessment in question. In Re Murphy, 9 Misc. Rep. 647, 30 N. Y. Supp. 511, it was held that where real estate is purchased in part with pension" money the same is taxable upon its value over and above the amount of the pension money paid therefor. In the case in hand we are of the opinion that the assessors had jurisdiction of the subject-matter, and that their assessment was not void. Broderick v. City of Yonkers, 22 App. Div. 448, 48 N. Y. Supp. 265; United States Trust Co. v. City of New York, 144 N. Y. 488, 39 N. E. 383; Toole v. Supervisors, 4 N. Y. Ann. Cas. 125, and note (s. c. 43 N. Y. Supp. 1160); In re Peek, 80 Hun, 122, 30 N. Y. Supp. 59; McKibben v. Oneida Co., 25 App. Div. 361, 49 N. Y. Supp. 553. From the views we have already expressed it follows that the special term fell into an error in finding as a conclusion of law “that the tax of $10.41 made by the defendant or its officers in 1894, and levied upon plaintiff’s premises, is illegal and invalid, and the defendant is not entitled to collect the same”; and that because of that error that portion of the judgment appealed from by the defendant should be reversed, with costs.

The special term did not award costs to either party as against the other, as neither was entirely successful in that court. It is contended in behalf of the plaintiff that the court erred in that regard. This action was brought on the equity side of the court, and therefore the trial court had a discretion in respect to the costs, which, we think, was not abused, and that we ought not to interfere with its discretion. West v. City of Utica, 71 Hun, 540, 24 N. Y. Supp. 1075, and cases cited in the opinion; Smith v. Cross (Sup.) 32 N. Y. Supp. 677. It follows from the views we have already expressed that that portion of the judgment which is appealed from by the plaintiff should be affirmed, and that that portion of the judgment appealed from by the defendant should be reversed, with costs of this appeal to the defendant.

So much of the judgment as is appealed from by the plaintiff affirmed. So much of the judgment as is appealed from by the defendant reversed, with costs of this appeal to the defendant. All concur.  