
    Simon D. Paddock, App’lt, v. John Barnett et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Pleading — Amendment.
    Ordinarily, unless the proposed pleading is clearly had or frivolous, its sufficiency will not be determined on. a motion for leave to serve it, but the other party will be left to his remedy by demurrer or on trial.
    Appeal from an order allowing the defendants to amend their answer.
    
      Homer Wezton, for app’lt; Frank H, Hiscock, for resp’ts.
   Merwin, J.

— This action was commenced in ’ justice’s court.

The defendant’s were assessors of the town, of Schuyler, in the county of Onondaga, and in the years 1884 and 1885, as the plaintiff in his complaint alleged, they assessed him for personal property in that town, when, in fact, to the defendant’s knowledge, he was not a resident or inhabitant of that town, but resided in the city of Syracuse, and by reason of such assessments he was compelled to pay the taxes for those years, based on such assessments; and he claimed to recover damages for the wrongful act of defendants. The defendants put in a general denial, and also set up the statute of limitations. The defendants succeeded in the justice’s court, and the plaintiff appealed to the county court for a new trial. Thereafter, the defendants made a motion in the county court for leave to amend their answer by setting up, as an additional and separate defense, an adjudication by the board of supervisors of Onondaga county of the matter in controversy, upon a petition by plaintiff to have the taxes refunded, which adjudication is alleged to have been made after hearing the plaintiff, upon the one side, and the defendants, apon the other, upon the question of the residence of the plaintiff and the legality of the tax, and after considering all the facts and allegations. It is alleged that the board decided that the taxes in controversy — one or both of them — were legal, and denied the plaintiff’s petition to have them' refunded. In granting the motion for leave to amend, the order appealed from was made. It gives the defendants the right to set up, as an additional defense, the facts and allegations contained in the affidavit of the defendant Nicholson, which is set out in the order.

The plaintiff claims that the defendants were guilty of loches in makin their motion. We find, however, no good reason for disturbing the discretionary decision of the county court on that subject. That matter was undoubtedly in view when the terms upon which the amendment was granted were fixed. Thé power of the county court to grant the amendment is well settled. Code, § 3071. Simpson v. R., W. & O. R. R. Co., 48 Hun, 113; 15 St. Rep. 539 ; Cramer v. Lovejoy, 41 Hun, 582; 5 St. Rep. 190. In the order of the county court there isa clause by which it is, in terms, held and decided that the defense sought to be set up states a bar to the plaintiff's right to recover.. By the statute under which the board acted (section 5 of chapter 855 of the Laws of 1869, as amended by chapter 326 of the Laws of 1885), it was authorized to “ refund to any person the amount collected from him of any tax, illegally or improperly assessed or levied.” This would seem to give the board the right to determine whether the tax was illegal (In re New York Catholic Protectory, 77 N. Y. 342, 345 ; In re Buffalo Mut. Gaslight Co., 144 N. Y. 228, 232 ; 63 St. Rep. 98, and, to that end, determine the question of residence. The act of 1869, as amended by chapter 695 of 1871, was under consideration in the case in 77 N. Y., and the power there construed was substantially the same as that conferred on the board of supervisors b_y the amendment in 1885. If the board had jurisdiction, and the matter was determined by it after a full hearing, there is authority for the proposition that the determination is conclusive upon the claimant and on succeeding boards. Osterhoudt v. Rigney, 98 N. Y. 222, 234; People v. Supervisors, 3 How. Prac. (N. S.) 241. Whether or not the determination innures to the benefit of the assessors is a question in more doubt. The assessors were certainly interested parties. They were heard in the matter; they represented, in a certain wajf, the public, which was the party in interest, against the plaintiff; and they, to a certain degree, acted for the public in making the assessment. There is at least color for the proposition that the action of the board, assuming there was a full and free consideration on the merits, should innure to the benefit of the assessors. Ashton v. City of Rochester, 133 N. Y. 187, 193; People v. Hall, 80 id. 117; Jay v. De Groot, 2 Hun, 205; Lyman v, Faris, 53 Iowa, 498. This question, however, need not, and should not, be determined here. Ordinarily, unless the proposed pleading is clearly bad or frivolous, its sufficiency should not be determined on a motion for leave to serve it, but the other party should be left to his remedy by demurrer, or on trial. Mitchell v. Allen, 25 Hun, 543; Campbell v. Campbell, 23 Abb. N. C. 187; 23 St. Rep. 352;, Ramsey Prac. 287. This rule should, we think be applied here.

There is another'objection to the adjudication, in the order, and that is. that it is too- broad,, as- it. assumes to decide that the proposed; defense is-a- bar to the entire cause of action of the plaintiff.. The plaintiff’s, cause of action relates to. the tax and assessment for the year 1884 as well as that of 1885. The proposed defense, as outlined in the affidavit of Nicholson, refers to the tax and assessment for the years 1885 and 1886, and not those of 1884. So that the defense proposed and: allowed to be put in would- seem to be only a partial one. The order of the county court, chould be' modified by striking out the clause which decided that the proposed defense states- a bar to the plaintiffs right of recovery, and, as so modified, should be affirmed.

Order modified by striking out the clause that decides that the proposed defense is a bar to the plaintiffs right, to recover, and, as so modified,, affirmed,, without costs to either party.

All concur.  