
    The People ex rel. Erie Railroad Company, Relator, v. The Board of Supervisors of Erie County, Respondent.
    (Supreme Court, Erie Special Term,
    June, 1906.)
    Mandamus — Mandamus against public officers — Audit and allowance of claims — Refunding taxes.
    Assessments upon relator’s property in three successive years having been reduced, on certiorari to review, more than $10,000 in each1 year, each of the orders providing that the board of supervisors should audit, allow and pay to relator so much of the respective taxes set forth in the order as the relator is “ lawfully entitled to in accordance with section 256 ” of the Tax Law (L. 1896, eh. 908), upon the audit of the board of supervisors only so much of relator’s claim as related to the State, county and town taxes was allowed. Upon mandamus to compel the audit and payment of relator’s claim" for school and highway taxes, held, that, as • the statute (Tax Law, § 256) defines the duty of the board of supervisors to refund the excess taxes, the phraseology of the order in the certiorari proceedings was of no importance.
    The fact that there ■ was refunded to the relator so much as was represented by the State, county and town taxes, and not such, part thereof as related to school and highway taxes, could not avail the board of supervisors, even though three years had passed.
    A decision of the Appellate Division that a highway tax was collected for a “ town ” purpose, upon- which the relator now relies, made after the State, county and town taxes were refunded to him, was merely declaratory of the law; and the right of the relator to the refund of the school and highway taxes was not enlarged thereby.-
    Motion for a peremptory writ of mandamus.
    Moot, Sprague, Brownell & Marcy, for relator.
    Nathaniel W. Norton (Frank L. Barnett, of counsel), for respondent.
   Marcus, J.

In the years 1899, 1900 and 1901 the relator instituted certiorari proceedings to review- the assessment of it's property in the town of Alden; and, on December 16, 1901, an order was granted and entered in "each proceeding reducing the valuation of relator’s property, the amount of such reduction being more than $10,000 in each year. Each of the orders contained the following provision: “ It is further ordered, adjudged and decreed that the Board of Supervisors of the.County of Erie at its first session after the granting of this order, at which’ said Company makes application therefor, shall audit and allow and pay to said Erie Eailroad Company * * * so much of the respective taxes above set forth * * * as said Erie Eailroad Company is lawfully entitled to in accordance" with Section 256 of Chapter 908 of the Laws of 1896.” On February 18, 1902, the relator' presented to the board of supervisors a claim for the taxes paid by it upon the valuation in excess of that fixed by the' orders.' This' claim was audited by the supervisors in April, 1902, and so much thereof as related to State, county and town taxes was allowed and so much thereof as related to school and highway taxes was disallowed.

A motion is now made for a peremptory writ of mandamus, directing the board of supervisors to audit and pay to relator this claim for school and highway taxes.

The argument on this proceeding seems to settle to a question of legal practice and procedure on the one hand and legal right and justice on the other. Without determining whether the board of supervisors acted in a judicial or ministerial capacity when part of the moneys was paid to the relator, in 1902, the fact nevertheless remains that the relator has not received the refund to which it was entitled as determined by this court in the certiorari proceedings. The 'phraseology of the order in such proceedings,- which reduced the amount of the assessment and which directed the refund, can be of no importance, since section 256 of the Tax Law itself defines the duty of the board to refund the excess taxes when the assessment has been reduced by the order in certiorari proceedings. Again, the fact that there was refunded to the relator so much as was represented by State, county and highway taxes and not such'part thereof as related to school and highway taxes cannot avail the respondent, even though three years have passed, nor the fact that the relator now relies on the authority of People ex rel. New York Central and Hudson R. R. Co. v. Matthias, 84 App. Div. 122, for the school and highway tax refund, which case had not been decided at the time the State, county and town taxes were refunded by the board. The law has in no way changed. The force of that decision has in no way extended or curtailed the rights of the parties. Undoubtedly it has made clear how the refund shall be made) It is declaratory of the law, but the right-of the relator to the refund by virtue of the Tax Law was never extinguished or enlarged by virtue of that decision.

Upon the broad ground, therefore, that the original direction of this court has never been complied with or carried to completion and that the relator has never had a refund of excess tax paid as directed, a peremptory writ of mandamus may issue.

¡Motion granted.  