
    Lewis E. Hopkins, Appellant, v. H. Burdette Leach, Respondent.
    Third Department,
    March 11, 1908.
    Tort — malicious assessment — when action does not lie.
    A town assessor having jurisdiction of the property and person of one assessed is not liable as for a malicious assessment in erroneously assessing personal property which the plaintiff claimed to have' sold.
    The remedy of the party illegally assessed is by certiorari. •
    Appeal by the plaintiff, Lewis E. Hopkins, from an order of the County Court of Madison county, entered in the office of the clerk of said county on the 29th day of August, 1907, reversing a judgment of the Justice’s Court of the town of Eaton in favor of the plaintiff and. granting a new trial before another justice.
    
      John A. Johnson, for the appellant.
    
      Joseph D. Senn, for the respondent.
   Per Curiam :

In Justice’s Court the plaintiff recovered a judgment against the defendant, who was one of three assessors in the town of Eaton, for a malicious assessment. When the defendant went to the plaintiff to ascertain his property, plaintiff had some young pups, which he claims he told the defendant had been sold, and afterwards informed the defendant that they had been sold and were gone. The plaintiff was, nevertheless, assessed thereupon and paid the tax, and now sues defendant to recover the amount paid.

This defendant had jurisdiction of the property and of the person of the plaintiff. He was not bound to accept the statement of the plaintiff that the pups had been sold. With jurisdiction of the property and of the person, he is not liable to the plaintiff for an error in the conclusion that plaintiff was the owner of the property at the time the assessment was completed. The plaintiff’s remedy was by certiorari. This is a rule laid down explicitly in Robinson v. Rowland (26 Hun, 501), and is not questioned in any other cases. The authorities referred to which hold the assessor liable are all authorities in cases where the assessor has not obtained jurisdiction of the person or property, or has acted contrary to the requirements of the law in making up the assessment roll. We are unable to see hoxv the defendant can in any event be liable to this plaintiff under the circumstances disclosed, and I, therefore, am of opinion that a new trial is not called for.

The judgment should be modified by striking out the provision granting a new trial, and as thus modified affirmed, with costs to respondent.

All concurred.

Judgment modified by striking out the provision granting a new trial, and as thus modified affirmed, with costs to respondent.  