
    Charles T. Barney, as Administrator, etc., Pl’ff, v. The Mayor, Aldermen and Commonalty of the City of New York, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May, 1894.)
    
    Tax—Illegal—Recovery.
    In an action to recover the amount of an illegal tax by an administrator, the intestate’s ignorance of its illegality at the time of its payment need not be proved, in case he was then in infirm health and attended to little of his business.
    Motion for a new trial on case and exceptions ordered to be heard at general term in the first instance.
    
      Geo. L. Sterliny, for the motion; J. A. Flannery, opposed.
   Van Brunt, P. J.

—This case in its main features is substantially the same as that of Barney v. The Mayor, 59 St. Rep. 459. The taxes in this case were for the years 1885 and 1886, and were paid while Ashbel H. Barney was living, this action being brought by his' administrator.

It is urged that there is no evidence to show whether Mr. Barney, Sr., had any knowledge of the facts which it is alleged rendered the assessment illegal, and that, therefore, there is a failure on the part of the plaintiff to show ignorance of the fact and involuntary payment on his part, which it is incumbent upon him to show affirmatively.

The'evidence shows that Mr. Barney, Sr., was in infirm health at the time of the imposition of the tax in question; that he attended to but little, if any, of his business, and that his son, the plaintiff, had entire charge of the same. It seems to us that under these circumstances it would be carrying the inference of knowledge too far to hold that there was a failure of proof because the dead man was not examined as to what his knowledge in respect to these transactions was.

For reasons, however, stated in the opinion in the case cited we think that the exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Parker and Follett, JJ. concur.  