
    The People ex rel. Nathan B. Warren et al., Resp’ts, v. Edward Carter et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed March 18, 1890.)
    
    
      1. Taxation—Res adjudioata.
    The assessors of the city of Troy had in 1885 and 1886 assessed relator’s property at $60,500, and in each year a judicial determination was procured that the actual value of the property was $40,000. Held, that the adjudications in the former years were binding and conclusive on the parties as to the value in those years and unless there was an increase in its value before the assessment of 1887, the special term committed no error in giving those adjudications conclusive effect between the parties.
    
      S. Same—Payment undeb pbotbst.
    Where one pays taxes under an assessment which is not void, but simply excessive and unequal, and gives notice of his proceedings to review and correct the same, thus indicating that he intends to reserve his rights and does not waive or abandon his proceedings, such payment under protest cannot be set up as a bar to the further prosecution of the proceedings.
    (Rugeb, Ch. J., dissents.)
    Appeal from judgment of the supreme court, general term, third department, affirming order reducing assessment.
    
      R. A. Rarmenter, for app’lts; S. B. Wellington, for resp’ts.
   Earl, J.

This proceeding was instituted by the relators under chapter 269 of the Laws of 1880, to review an assessment made by the assessors of the city of Troy for the year 1887 upon their property in that city known as “ Eiver View,” which had been assessed at $60,500. The assessors had in each of the years 1885 and 1886 assessed the property at the same sum, and by proceedings instituted in each of those years under the same act the relators had procured a j udicial determination that the actual value of the property was $40,000, and that the assessment should be reduced to' that sum. That adjudication was binding upon these defendants. In the year 1887 the assessors professed to act upon the statutory rule of assessing all real estate in the city at its actual value, and they had no right to assess the property in question at any greater value than $40,000, unless it was worth more.

Upon the trial of this matter the relator produced the records in the prior proceedings, and then gave evidence tending to show that there had been no change in the value-of the property, and that it was not worth to exceed $40,000. The defendants gave evidence controverting the value claimed by the relators, and tending to show that the property was worth the sum of $60,500. The court at special term found that the actual value of the property was but $40,000.

The adjudications made in 1885 and 1886 were binding and conclusive upon the parties thereto as to the value of the property in those years, and unless there was an increase in its value subsequent to those adjudications and before the assessment in 1887, or some change affecting its assessable value, the court at special term committed no error in giving those adjudications conclusive effect between the parties. The fact that some of the assessors had received new terms of office was unimportant. The offices and the officers were the same, and we see no reason to doubt that the doctrine of res ad judicata should apply to such a case so far as above indicated.

The objection is made that the relators did not appear before the assessors on what is called the “ grievance day, and ask to Lave the assessment corrected. But they allege in their petition that they did appear before the assessors on that day and requested that the assessment be reduced to $40,000, as determined by the previous adjudications, and that the .assessors refused to reduce the same; and this allegation in the petition is not denied or put in issue by the return, and must therefore be taken as admitted. . '

After the writ of certiorari was issued and the proceedings were thus pending, and after the assessment roll as amended and cor-rected had been placed in the hands of the city chamberlain for ■collection, on the 15th of October, 1887, the relators paid the laxes imposed upon the property in question. But at the time of •such payment they served upon the chamberlain and left with him a written protest stating that the taxes were paid under protest, “for the reason that the assessment against said pieces of property are illegal, excessive and unequal, for the correction of which proceedings are now pending in the supreme court.”

The evidence does not disclose how the relators came at that time to make the payment. We cannot assume in the absence of any proof that the payment was voluntary, but we may assume ■that it was under the stress of some compulsion, and that thus it was involuntary within the meaning of Bruecher v. Village of Port Chester, 101 N. Y., 240. Where, however, one pays taxes imposed under an assessment which is not void but simply excessive, and unequal, and gives notice of his proceedings to review and correct the same, thus indicating that he intends to reserve "his rights and does not intend to waive or abandon his proceedings, we know of no principle of law upon which such a payment under protest can be set up as a bar to the further prosecution of the proceedings. By such payment he waives no rights, and he does no wrong and creates no embarrassment to the municipality or officer taking his money, and he cannot be estopped •thereby. Section 2 of the act, chap. 269, provides that the writ of certiorari allowed under that act shall not stay the proceedings of the public officers connected with the assessment or collection of the taxes; and hence it would be extremely unjust to hold that in case the tax which can be enforced against the taxpayer shall he paid he shall lose his remedy under the act.

In section 8 of the act it is provided that in case the assessment ■shall be reduced by judgment in the proceedings, “ then there ;shall be audited and allowed to the petitioner, and included in the next year's tax levy of said town, village or city, and paid to ■the petitioner the amount, with interest thereon, from the date of payment, in excess of what the tax should have been as determined by such judgment or order of the court.” The judgment in this proceeding provides that the assessment shall be reduced to $40,000, and that there should be audited and allowed to the relators the amount of taxes paid upon the erroneous assessment, with interest from the date of payment; and that judgment is in ■strict conformity with the statute, and is not subject to any just complaint.

We áre, therefore, of opinion that the judgment should be .affirmed, with costs.

All concur, except Ruger, Gh. J., dissenting. 
      
       Affirming 26 N. Y. State Rep., 983.
     