
    In the Matter of the Application of The Edison Electric Illuminating Company of Brooklyn, Appellant and Respondent, for an Order Directing The Common Council of the City of Brooklyn, Appellant, to Refund Certain Taxes Illegally and Improperly Assessed and Collected.
    
      Taxation — a corporation paying a State tax and also a tax to a city from which the State tax has not been deducted—order that the city refund it.
    
    Where a domestic corporation which is, under chapter 543 of the Laws of 1880, exempt from taxation upon its capital stock and personal property, except as provided in that act, and which has, during a period of several years, paid directly to the State the State tax imposed hy such act, pays also, during that period, taxes levied upon its personal property by a city, in ignorance of the fact that any amount for State purposes was included therein, and that it had not had the benefit of the statutory exemption in its favor, the latter payment cannot be considered to have been voluntary; and under the provisions of section 16 of the County Law (Laws of 1893, chap. 686), permitting the board of supervisors of a county to “correct any manifest clerical or other error in any assessment,” and requiring it, upon the order of the County Court, to refund “to any person the amount collected from him of any tax illegally or improperly assessed or levied,” the corporation may, in special proceedings instituted by it, obtain an order requiring the city to refund the amount of such taxes thus unjustly collected within the period of the six years prescribed by the Statute of Limitations.
    Appeal by The Common Council of the City of Brooklyn from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 7th day of October, 1897, ordering the common council of the city of Brooklyn, to refund, or cause to be refunded, certain 'taxes upon personal property of the Edison Electric Illuminating Company of Brooklyn during the years 1892, 1893 and 1894; also, an appeal by the Edison Electric Illuminating Company of Brooklyn from such order, in so far as it fails to require the common council of the city of Brooklyn to refund the amount of the taxes paid by the petitioner for the years 1889 and 1890.
    
      William G. Ooóke, for the common council of the city of Brooklyn, appellant.
    
      Edwa/rd S. Peak, for the petitioner, appellant and respondent.
   Goodrich, P. J.:

The Edison Electric Illuminating Company is a domestic corporation, and during the years 1889 to 1894, both inclusive, was liable to pay a tax directly to the State, under the act to provide for raising taxes for the use of the State, upon certain corporations, • joint-stock companies and associations ” (Chap. 542, Laws of 1880), and the acts amendatory thereof; but by section 8 its capital stock and personal property were exempted from taxation except as provided in the act. The company was assessed upon its personal property for, and paid to the State, under the provisions of said act: In the year 1890, $720 ; in the year 1891, $1,046.25; in the-year 1892, $1,812.50; in the year 1893, $2,590.86; in the year 1894, $4,031.25.

In the years 1889 to 1894, both inclusive, the personal property of the company was included in the property upon which a tax for State purposes was levied and collected by the local authorities under that act, and the company paid the whole amount of the taxes for those years to the collector of taxes of the city of Brooklyn. The amounts thus paid for State purposes was as follows: In the year 1889, $162.14; in the year 1890, $325.57; in the year 1891, $192.66; in the year 1892, $354.03; in the year 1893, $530.06 ; in the year 1894, $624.54. . ■

It will be observed that these taxes in the city of Brooklyn are levied in advance for the succeeding years. Thus, the company, upon its personal property, paid to the State and to the city taxes for the years 1889 to 1894, inclusive, and now claims to have refunded to it the amounts paid by it to the city, as shown in the last-named schedule.

By section 16 of the “ County Law ” (Laws of 1892, chap. 686), (1 R. S. [9th ed.] 600) it is provided as follows : “ Any such board (of supervisors) may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to such board, or which may or shall have properly come before such board for its action, confirmation or review, and cause to be refunded to any person the amount collected from him of any tax illegally or improperly assessed or levied, and upon the order of the County Court it shall refund any such tax.”

Under this act the company presented its petition to the County Court of Kings county, alleging that these sums were illegally and wrongfully collected by the city and paid by the company in ignorance of the fact that any amount for State purposes was included in the personal taxes or that it had not received the benefit of the statutory exemption above set forth. No answer ivas made, and we assume the truth of the petitioner’s allegations. The court ordered the common council to refund the taxes thus paid for the years 1891 to 1894, both inclusive, but did not order it to refund those paid for the years 1889 and 1890. From this order the city appeals, and the company also appeals from so much of the order as failed to require the repayment of the taxes of 1889 and 1890.

It is clear, and it was conceded by the learned corporation counsel upon the argument, that the amounts were unjustly collected from the company; but he contends that the Statute of Limitations has run against the' recovery of the taxes of 1889 and 1890, and, as to the other years, that the payments were voluntary and cannot be recovered unless the company was subjected to some sort of legal duress.

We have no difficulty in deciding that the act of 1892 provides for cases like the present. The act authorized tire board to correct any' manifest clerical or other error in any assessment or returns,” and we hold that this was a manifest error, not merely or necessarily a clerical error.

The payment cannot be said to he a voluntary payment within the cases cited by the appellant’s counsel. It was made under apparent legal authority and without knowledge that any amount for State purposes was included. The city made no answer to the- petition, and the allegations therein contained must form the facts upon which the questions herein involved are to be decided. In Peyser v. Mayor (70 N. Y. 497) the court distinctly held that where the proceedings in the case of an assessment are regular upon their face they have the force of a judgment, and a payment of taxes made thereunder is not voluntary. There is no attempt on the part of the city in this proceeding to prove that the assessment proceedings were irregular or void. In Vanderbeck v. City of Rochester (122 N. Y. 285) it was held that a voluntary payment of an" assessment made under a mistake of law, with full knowledge of the facts and not induced by fraud or improper conduct on the part of the payee, cannot be recalled; but here the uncontroverted allegation of the petition is that the money was paid by the company in ignorance of the fact that any amount for State purposes was included and that it had not received the benefit of the legal exemption in its favor; (See, also, Strusburgh v. Mayor, etc., City of New York, 87 N. Y. 452.)

It is evident that section 16 does not authorize the County Court to cancel an assessment; the only power given to it is to direct the refunding of an illegal tax that has been paid. Such was the reasoning of the Court of Appeals in Matter of Buffalo Mutual Gas Light Company (144 N. Y. 228). Evidently the statute was intended to provide a summary remedy for the refunding of money paid under an illegal assessment, irrespective of the circumstances under which it had been paid. Wherever there had been “ manifest error ” the court was empowered to correct it summarily, and under the petition in this proceeding such manifest error is shown. The city has illegally collected from the company money under a manifest error and ought in good conscience to refund it.

Another question arises as to the effect of the Statute of Limitations upon the payments for 1889 and 1890. Harris v. Super visors of Niagara Co. (33 Hun, 279) is authority for saying that proceedings taken under a similar act (Chap. 695, Laws of 1871) are “ special proceedings.” But in the case of People ex rel. Sheridan, v. French (13 Abb. N. C. 413), a proceeding by mandamus to compel the defendant, as police commissioner of New York, to pay a policeman’s salary, it appeared that the relator’s light of action had been barred by the six-year Statute of Limitations; and the court held that the fact that a remedy by mandamus, that is, by a special proceeding, also existed, made no difference in the application of the. Statute of Limitations prescribed by the Code of Civil Procedure,, and that such special proceeding was barred unless taken within the prescribed period. (See, also, to the same effect, People ex rel. Byrne v. French, 12 Abb. N. C. 156.) We can see no difference arising from the fact that in the present proceeding the County-Law, subsequently passed, gave a new and additional remedy. The limitation was not changed. The new remedy applied only within, the limits of the Statute of Limitations.

It follows that the order must be affirmed.

All concurred, except Bartlett, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  