
    Mary J. Coxe, Ex’rx, et al., Resp’ts, v. Byron J. Town, Receiver, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    Taxes—Action to vacate—Laws 1880, chap. 68.
    Section 8 of chap. 68, Laws of 1880, relative to taxes in Saratoga Springs, provides that any person interested in property upon which a tax or assessment has been or may be assessed or levied, may bring an action to vacate and set aside such tax or assessment or any sale made by virtue thereof, and to enforce and restrain the sale of any real or personal property. The assessors, in 1888; placed on the roll “Mary J. Jones (heirs)” as liable to taxation on certain real estate. She had died in 1882, and by her will devised the property to plaintiffs as testamentary trustees. Plaintiffs are not residents of this state. The premises were advertised for sale. Held, that an action to vacate the tax and restrain the sale could be maintained under the above clause of § 8.
    Appeal from judgment setting aside and cancelling a tax claimed to have been levied upon the premises of plaintiff, and restraining the defendant from enforcing such tax.
    The facts, as found, are that Mary J. Jones, the former owner of the premises in question, died in 1882, having first made her will by which she devised said premises to the plaintiffs as testamentary trustees and the plaintiffs have since been the owners of the property.
    One of the plaintiffs resided and still resides in Pennsylvania and the other in Oregon.
    The premises consisted of different lots, some of which were wholly vacant and unoccupied, and the remainder, being the Clarendon Hotel, were occupied by Charles E. Leland.
    In July, 1888, the assessors of the town of Saratoga Springs set down among the names of taxable inhabitants in the assess.ment-roll for :that year the name, “ Mary J. Jones (heirs),” and .assessed her for -real estate, $46,600, on which the supervisors levied a tax .of -$782.88.
    The supervisors issued a warrant to the receiver of taxes of ."Saratoga Springs.
    The defendant, Byron J. Town, as receiver, claiming to act under the provision of chapter 68 of the Laws of 1880, advertised the premises so assessed for sale.
    
      John L. Henning, for app’lts; Charles S. Lester, for resp’ts.
   Learned, P. J.

There is no question on the merits of this .casa The only point is whether an action can be maintained to .set aside this assessment

We have no doubt that the latter clause of § 8, chap. 68, Laws •of 1880, gives this right Temple Grove Sem. v. Cramer, 10 Abb. N. C., 427.

And whatever may be the legal effect of an assessment like the -present, it does as a matter of fact create a cloud on the plaintiff’s -title. She cannot sell with that freedom with which she could ¡sell if it were not for the alleged assessment. Those who desire to purchase are afraid when they see what purports to be an assessment, even though they may be advised that it is void.

If the section above cited is intended to make an exception to the rule which courts have adopted, it is a very excellent exception. And it would -be well if the exception should become the general rule.

Judgment affirmed, with costs.

Mayham, J., concurs.  