
    WORDEN v. ONEIDA COUNTY.
    (Supreme Court, Appellate Division, Fourth Department.
    December 9, 1898.)
    2. Taxation—Exemptions—Pension Money.
    Under 1 Rev. St. p. 388, § 4, subd. 9, as construed, exempting realty purchased with pension money from taxation where it is necessary or convenient for and occupied by a pensioner as a home for himself and family, the whole of a piece of real estate is not exempt because it was partly paid for with pension money, but only the sum invested.
    
      3. Same—Assessment and Levy—Jurisdiction.
    The assessor has jurisdiction to assess, and the board of supervisors may levy a tax on the full value of, realty within a tax district wherein the owner also resides, though the property is partially exempt because . of pension money invested therein.
    8. Same—Object tons—AV aiver—Actions.
    One entitled to a reduction of an assessment of realty because partly paid for with pension money cannot have the assessment set aside, and recover taxes paid thereunder, unless he makes his claim before the assessors on grievance day, and has the assessment reviewed by certiorari, or shows a valid excuse for not doing so.
    Appeal from special term.
    Action by Mary A. Worden against Oneida county. From a judg ment dismissing the complaint, plaintiff appeals.
    Affirmed.
    This action was begun October 13, 1896, to set aside the assessments made on the plaintiff’s realty in the years 1890, 1891, 1892, 1893, 1894, and 1896, and to recover $18.81, paid June 15, 1891, for taxes assessed in 1890; $14.29, paid February 1, 1892, for taxes assessed in 1891; $16.87, paid May 2, 1893, for taxes assessed in 1892; $24.57, paid August 9, 1894, for taxes assessed in 1893; and $14.79, paid January 21, 1895, for taxes assessed in 1894,— upon the ground that the realty was purchased with pension money, and was necessary and convenient for the support and maintenance of the plaintiff’s family, and was occupied as a home. May 17, 1888, the plaintiff, as widow of Linus D. Worden, a private in Company <3, 117th infantry regiment New York volunteers, received a pension on account of the services of her deceased husband, at the rate of $8 per month from February 19, .1879, to March 19, 1886, and at the rate of $12 per month from the latter date, during her widowhood, and also of $2 per month for each of her three children from" February 19, 1879, and expiring as to the first child June 6, 1888, as to the second child December 21, 1890, and as to the third child October 2, 1892. October 8, 1888, the plaintiff purchased a dwelling house and lot, known as “No. 52 Cornelia Street," in the city of Utica, for which she agreed to pay $3,950, which was conveyed to her by a deed dated that day, and recorded m the office of the clerk of the county of Oneida, in Book No. 649 of Deeds, at page 247. She paid for the realty, at the date of the deed, $1,900, from money received under said pension certificate, and gave her bond, secured by a mortgage on the premises, for the payment of $2,050, which bond and mortgage bear even date with the deed. January 13, 1889, the plaintiff paid, out of pension money received under said certificate, $400 on said bond and mortgage; and between that date and April, 1895, she paid, at various dates, $500 on said bond and mortgage, out of money received under said pension ■certificate. The dates when the $500 were paid are not given, and the court has not found how much was unpaid on the bond and mortgage at the time any one of the assessments complained of was made, except that, when the assessment of 1896 was made, there were $1,150 of the principal of the bond and mortgage unpaid. From 1890 to 1894, inclusive, this realty was valued by the assessors for the purposes of taxation at $1,700, a little more than 43 per cent, of the purchase price; and in 1896 the realty was valued by the assessors for taxation at $900, about 23 per cent, of the purchase price. In •each of these years the assessors met on grievance day, as required by statute; and the plaintiff omitted to appear and claim that all or any part •of her property was exempt from taxation by reason of having been paid for in part by pension money; nor has the action of the assessors in any of these years been reviewed by certiorari, or by any legal proceedings. It is ■alleged in the complaint that this realty is necessary and convenient for the plaintiff for a home for herself and family, and that she has, since it was purchased, resided in the dwelling house, and so occupied the property as a home. This allegation is denied in the answer, but the court failed to affirm or deny this issue. The plaintiff also alleges that she paid the taxes assessed •in 1890, 1891, 1892, and 1893, not knowing that her property was exempt from taxation, in whole or in part, because paid for in part by pension money, and that the taxes assessed in 1894 were paid under protest, to prevent her property from being sold. This allegation is denied in the answer, ■and the issue so joined is not affirmed or denied by the decision. During the trial of the action, the plaintiff abandoned her sixth cause of action, which ■relates to the assessment of 1896.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, and WARD, JJ.
    George C. Carter, for appellant.
    George C. Morehouse, for respondent.
   FOLLETT, J.

This case will be decided on the theory that all the undecided issues were or should have been determined in favor of the plaintiff. By the statutes of this state, pension money “granted by the United States or by a state for military or naval services” is “exempt from levy and sale, by virtue of an execution” (Code Civ. Proc. § 1393) and has been since March 1, 1877 (Laws 1876, cc. 448, 449; Code of Remedial Justice, §§ 1393, 1496). In March, 1890, the court ■of appeals construed section 1393 of the Code of Civil Procedure, and held that realty “necessary or convenient for the support and maintenance of the pensioner and his family” which had been paid for with pension money was also exempt from levy and sale on an execution. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108. Under the Revised Statutes, “all property exempted by law from execution” was exempt from taxation (1 Rev. St. p. 388, § 4, subd. 9), which provision remained unchanged until June 15, 1896, when chapter 908 of the Laws of 1896 (the tax law) took effect, which repealed chapter 13 of part 1 of the Revised Statutes, except' section 7 of title 6, and provided:

“Sec. 4. The following property shall be exempt from taxation: * * * <5) All property exempt by law from execution, other than an exempt homestead.”

By these statutes and the decision cited, realty “necessary or convenient for the support and maintenance of the pensioner and his family,” which has been paid for by the pensioner with pension money, now is,, and has been since May 1,1877, exempt from taxation, under the laws of this state. By chapter 663 of the Laws of 1895, which took effect September 1, 1895, section 1393' of the Code of Civil Procedure was amended by providing that the property described in the section should also be exempt “from seizure for nonpayment of taxes”; and by chapter 348 of the Laws of 1897, which took effect September 1, 1897, this section was again amended by adding, “Except that teal property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon.” This amendment took effect after the assessments and payments involved in this action were made, and has no effect upon the questions presented, except that the amendment of 1897 is a legislative implication—whatever that may amount to—that assessments may be lawfully levied on “real property purchased with the proceeds of a pension.”

The exemption provided by section 1393 of the Code of Civil Procedure is applicable to the pension money received by a widow of a-deceased private soldier, and to realty paid for therewith, if it be-necessary or convenient for the support of the pensioner and her family, the exemption not being restricted to property purchased with pension money received by a pensioner for his service in the “military or naval services.” In re Peek, 80 Hun, 122, 30 N. Y. Supp. 59; People v. Williams, 6 Misc. Rep. 185, 27 N. Y. Supp. 23; Broderick v. City of Yonkers, 22 App. Div. 448, 48 N. Y. Supp. 265. In case-realty is in part paid for with pension money, and in part with a purchase-money mortgage on the premises, or in part with money or property derived from other sources, the whole of the realty is not exempt from taxation, but only the portion thereof paid for with pension money. In re Peek, 80 Hun, 122, 30 N. Y. Supp. 59; McKibben v. Oneida Co., 25 App. Div. 361, 49 N. Y. Supp. 553; In re Murphy, 9 Misc. Rep. 647, 30 N. Y. Supp. 511; People v. Wells, 10 Misc. Rep. 195, 31 N. Y. Supp. 310; Ernenwein v. Oneida Co., 24 Misc. Rep. 216, 53 N. Y. Supp. 529 ; Toole v. Oneida Co., 24 Misc. Rep. 218, 53 N. Y. Supp. 530. It was-not the intention of the legislature to exempt the whole of a pieeeof real estate from taxation because a small fraction of its value is paid for with pension money. Were this the rule, a pensioner might purchase real estate worth $5,000, and by paying down $250* in pension money, and giving a purchase-money mortgage for the-remainder, secure an exemption on the whole value of the property. The intention of the legislature was to exempt from taxation, and' from seizure for debts, pension money as such, or, in case such money has been invested in realty necessary or convenient for the support of a pensioner and his or her family, to exempt the sum so invested. Statutes exempting property from taxation are to be strictly construed,, and so as not to include more within the exemption than has been expressly granted by the words of the statute. People v. Board of Com’rs of New York, 76 N. Y. 64; People v. Davenport, 91 N. Y. 574, 586; Cooley, Tax’n (2d Ed.) 205; 1 Desty, Tax’n, 132; Sedg. St. & Const. Law (2d Ed.) 296; Cumming & G. N. Y. Excise Laws, 57 et seq., and cases cited; 25 Am. & Eng. Enc. Law, 157; Burroughs, Tax’n, 132. The plaintiff’s realty being within, and she a resident of, the tax district wherein the assessment was made, and the property being assessable for its value, less the exemption, it follows that the assessors had jurisdiction to make the assessment, and the board of supervisors had jurisdiction to levy the tax, which proposition has been decided. Weaver v. Devendorf, 3 Denio, 117; Barhyte v. Shepherd, 35 N. Y. 238; Williams v. Weaver, 75 N. Y. 30, affirmed 100 U. S. 547; United States Trust Co. of New York v. City of New York, 144 N. Y. 488, 39 N. E. 383; In re Peek, supra; McKibben v. Oneida Co., supra.

The rule that assessors have not jurisdiction to assess, and that boards of supervisors have not jurisdiction to tax, the bonds of the United States, or realty or other property wholly exempted from assessment and taxation, because used for governmental purposes, or for schools, hospitals, churches, etc., is not applicable to a case where only a.proportionate part of the property assessed is exempt from taxation.

It is necessary for a pensioner who claims a reduction in the assess» ment of realty, because partly paid for with pension money, to make his-claim before the assessors on grievance day, unless some valid excuse is shown for not making such complaint (People v. Duguid, 68 Hun, 243, 22 N. Y. Supp. 988); and if that is not done, and the assessment is not reviewed by certiorari, an action cannot be maintained by the pensioner to set aside the assessments, and to recover the taxes paid' (Broderick v. City of Yonkers, supra; United States Trust Co. of New York v. City of New York, 144 N. Y. 488, 39 N. E. 383; Cumming & G. N. Y. Excise Laws, 323, and cases cited).

The judgment should be affirmed, with costs. All concur.  