
    The Dutchess County Mutual Ins. Co., Resp’t, v. The City of Poughkeepsie, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Taxation—Property exemption—Laws 1886, chap. 679, § 4.
    The action was brought to recover taxes paid under protest by the-plaintiff to the defendant. The taxes paid were assessed on the personal property of the defendant. Laws 1886, chapter 679, section 4, provides that the real estate of such insurance companies shall continue to be assessed and taxed where situated for state and local purposes, but that personal property * * * of all insurance companies doing business in this state shall be exempt from all assessment or taxation except as in the act prescribed. The plaintiff claimed that under this act they were exempt from the payment of any other taxes than those for state purposes, imposed by the act. Held, that the personal property of the plaintiff was. exempt from all taxation or assessment except as therein provided, and that the taxes imposed were illegal, and should not have been collected.
    3. Same—Illegal taxes may be recovered.
    Where illegal county taxes have been paid under protest, and after a levy and threatened sale, to a city treasurer, who received them in his capacity, and in pursuance of his duty as a city official, and which taxes were covered into the city treasury to replace the moneys for county taxes paid by the city before the payment by the taxpayer, they may be recovered back.
    8. Same—Constitutionality of statute—Laws 1886, chap. 679, § 4.
    The statute (Laws 1886, chapter 679, section 4), under which the plaint- . iff claims exemption is not unconstitutional.
    Appeal from a judgment entered on the verdict of a. jury rendered at the Dutchess county circuit.
    
      C. B. Herrick, for app’lt; Frank B. Lo'un, for resp’t.
   Pratt, J.

The questions are raised by this appeal, 1st, whether the- act of 1886 referred to, exempts the plaintiff from the payment of any other taxes than the taxes for state purposes imposed by the act; and, 2d, if it does so exempt, can this suit be maintained to recover back moneys-paid to the city for such taxes?

The taxes so paid were assessed on the personal property of - the plaintiff for the years 1887 -and 1888, and paid under protest; the tax of 1888, after warrant had been issued and levy made.

The section of the statute under which plaintiff claims exemption, is as follows :

Sec. 4. The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated for state, city, town, county, village, school or other-local purpose; but the personal property, franchise and business of all insurance companies incorporated under the laws of this state, or any other state or county, and doing business in this state, and the shares of stock of said companies shall hereafter be exempt from all assessment or taxation, except as in this act prescribed; provided that this section shall not affect the fire department tax of two per cent now required to be paid.”

This act seems to be as clear and explicit as possible, that the personal property of the corporations referred to shall be exempt from all assessment and taxation except as therein provided; the taxes were, therefore, illegally imposed, and ought not to have been collected.

The defendant claims that portions of the money so paid were for county taxes, and collected upon the warrant of the board of supervisors, and, therefore, the city is not liable. The answer to this is that the treasurer of the defendant received the money in his' capacity as an officer of defendant, and in pursuance of his duty as such officer.

Prior to the payment of the taxes the defendant had paid the county tax to the county treasurer out of the general city fund, and the taxes when paid by plaintiff were covered into the city treasury to replace the moneys for county tax, and the balance for the other purposes for which the same were assessed.

It cannot be said that any of the payments were voluntary. The first were by an arrangement with the city treasurer paid under protest, and the last, after levy and threatened sale of property.

The case of Everson v. City of Syracuse, 100 N. Y., 577, is not an authority applicable here. That was an action of tort against the city for levy and sale made by a constable, and failed for the reason that the constable was not authorized by the city to commit the tortious acts complained of in this case is in the nature of an action directly against the city for money had and received by the -defendant to-plaintiff’s use.

The criticism upon the statute of 1886, indulged in by the defendant may be just, but the remedy must be sought in the modification or repeal of the statute. We are unable tea say it is unconstitutional.

Judgment affirmed, with costs.

All concur.  