
    VALENTINE DIEFENTHALER, App’lt, v. THE MAYOR, Etc., Resp’t.
    Taxes and assessment — Illegal tax—Action to recover back—Laws 1880, chap. 550.
    Appeal by both parties from judgment rendered upon demurrer to certain defenses set up in defendant’s answer.
    
      G. L. Sterling, for def’t; D. D. Acker, Jr., for pl’ff.
   Van Brunt, P. J.

This action was brought to have an assessment declared illegal to the extent of 48.3 per cent thereof and to recover the amount of the alleged excess which had been paid in 1874. The answer set up among other things, the two separate defenses, that the assessment had not been reduced under chapter 550 of the Laws of 1880, and secondly, that the six years statute of limitations applies. The plaintiff demurred to each of these defenses. The demurrer was sustained as the first separate defense and overruled as to the second.

The demurrer seems to have been properly sustained as to the first defense. The reasoning in the case of Jex v. The Mayor (103 N. Y., 536; 3 N. Y. State Rep., 657)) in favor of the right to commence an equitable action to vacate an assessment, notwithstanding the prohibition contained in the act of 1874, amending the act of 1858, applies equally to the prohibition contained in chapter 550 of the Laws of 1880; the result being that such prohibition relates only to those cases in which the assessment is a lien upon the property affected thereby.

The demurrer was properly overruled as to the second defense.

It is admitted by the counsel for the plaintiff that if the assessment was void for want of jurisdiction the six years statute of limitations might be claimed to apply, in view of the decision in the case of Jex v. Mayor (supra), and as the allegations in the complaint, as to the defects in the assessment, being dehors the record, are denied, there is no presumption that such defects are dehors the record, and by demurring to this defense the denial of the allegation in the complaint is virtually admitted to be true. The court, therefore, could not sustain the demurrer upon the ground that the six year statute could not apply, because the fact, which would take the case out of the operation of such statute, was not admitted by the pleadings.

The judgment should, therefore, be affirmed without costs to either party.

Bartlett and Macomber, JJ., concur.  