
    (78 Hun, 336.)
    BARNEY v. MAYOR, ETC., OF CITY OF NEW YORK.
    (Supreme Court, General Term, First Department.
    May 18, 1894.)
    Action by Charles T. Barney, as administrator of Ashbell H. Barney, deceased, against the mayor, aldermen, and commonalty of the city of New York, to recover taxes paid. Defendant moves for a new trial on exceptions ordered to be heard in the first instance at general term.
    Granted.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Geo. L. Sterling, for the motion.
    J. A. Flannery, opposed.
   VAN BRUNT, P. J.

This case, in its main features, is substantially the same as that of Barney v. Mayor, etc. (herewith decided) 29 N. Y. Supp. 175. The taxes in this case were for the years 1885 and 1886. and were paid while Ashbell H. Barney was living, this action being brought by his administrator. It is urged that there is no evidence to show whether Mr. Barney, Sr., had any knowledge of the facts which it is alleged rendered the assessment illegal, and that, therefore, there is a failure on the part of the plaintiff! to show ignorance of the fact and involuntary payment on his part, which it is incumbent upon him to show affirmatively. The evidence shows that Mr. Barney, Sr., was in infirm health at the time of the imposition of the tax in question; that he attended to but little, if any, of his business; and that his son, the plaintiff, had entire charge of the same. It seems to us that under these circumstances it would be carrying the inference of knowledge too far to hold that there was a failure of proof because the dead man was not examined as to what his knowledge in respect to these transactions was. For the reasons, however, stated in the opinion in the case cited, we think that the exceptions should be sustained, and a new trial ordered, with costs to the defendant to abide the event All concur.  