
    In the Matter of the Application of Zalia M. Chadwick to Have Certain Taxes Refunded. Zalia M. Chadwick, Appellant; The Board of Supervisors of Tioga County, Respondent.
    
      Assessment for tax of non-resident as resident land to an estate—if mid the tax' may be reassessed the next year—void school tax — defect, how cured.
    
    Where an assessment for State and county taxes of .non-resident land in a town, is void because it was assessed as resident land to “Warford, Cyrus, est. G. H. Grafft, Agt.,” the town assessors may, under section "33 of the Tax Law (Laws of 1896, chap. 908), treat the land as having been wholly “ omitted ” from the assessment roll, and the next year, in- addition tó assessing; the tax. for that year, reassess the tax for thp previous year, notwithstanding the- fact that the prop- ' erty has changed hands during the interval.
    The levying and collection of school taxes is governed by title 7 of articlé" 7 of the Consolidated School Law (Laws of 1894, chap. 556), and if there be any substantial departure from the method there pointed out, thé tax is illegally imposed and the’.party: in interest will be entitled to have it refunded.
    A school'tax on non-resident land assessed by the- trustees of the school as resident land to “ Cyrus, Warford Est.,” is void on-its face, and in the event of the non-payment of such tax the county treasurer has no authority. to pay the same nor has the board of supervisors any power to transfer such tax to the town assessment roll: If it does and the owner of the property is obliged to - pay the tax in order to redeem the property from a sale for such unpaid tax, he is entitled to have the same refunded under section 16 of thé County Law (Laws of 1893, chap: 686).
    The proper remedy is to have the tax list amended and corrected by the trustees of, the school district with the approval of the Superintendent of Public Instruction.
    
      Appeal by the petitioner, Zalia M. Chadwick, from an order of the County Court of Tioga county, entered in the office of the clerk of the county' of Tioga on the 15th day of ¡November, 1900, denying petitioner’s application for an order directing the board of supervisors of Tioga county to refund certain taxes claimed to have been illegally and improperly assessed or levied, the application having been made under section 16 of chapter 686 of the'Laws of 1892, known as the County Law.
    
      Frederick F. Hawkes, for the appellant.
    
      Fred W. Clifford, for the respondent.
   Kellogg, J.:

It appears from the papers before us that in 1895 the assessors of the town of Barton, in Tioga county, assessed certain real estate in said town to Warford, Cyrus, est. G. H. Grafft, Agt.,” at the sum of $10,000, and thereafter in that year the board of supervisors levied thereon a tax of $80, and directed the collector to collect the same from the person to whom assessed, that is, the estate of Cyrus Warford, G. H. Graift, agent. The tax was not collected. In February, 1896, the applicant, Zalia M. Chadwick, purchased the property. In 1896, after such purchase, the assessors of the town of Barton assessed the same property to the then owner, Zalia M. Chadwick, and fixed a valuation for that year. In a separate line on the same roll they at the same time reassessed the same property as “ omitted ” from the roll of 1895 and at the valuation fixed in 1895, and the board of supervisors levied a tax for the year 1896, and also carried out as against the omitted ” assessment the tax at the rate fixed in 1895, viz.: Eighty dollars. I think this was properly done, and as to the tax the applicant cannot successfully claim that the tax was illegally or improperly assessed or levied. The assessors had a right to treat this property as haying been wholly “ omitted ” from the assessment roll of 1895. The assessment of the property as resident land and assessing it to an estate was a failure to assess at all. The assessment was wholly void. (Trowbridge v. Horan, 78 N. Y. 439 ; Cromwell v. MacLean, 123 id. 486 ; Matter of Adams v. Supervisors, 18 App. Div. 415.) Section 33 of the Tax Law (Laws of 1896, chap. 908) authorizes this method of procedure on the part of assessors. The duty of the board of supervisors was to set down or levy the tax at the rate fixed for the year when the assessment was omitted, and I s,ee no error committed by either assessors or supervisors in the proceedings taken as to these taxes which were the State and county taxes for general purposes.

The petition for the refunding of the foregoing tax presented to the board of supervisors and thereafter to the County Court of. Tioga county also mentioned another tax, a' school tax which the board of supervisors also refused to refund and the court refused to order it refunded. The facts as to this school tax appear by the petition to be these, and these facts are undisputed : In 1895 the trustees of the school district in which the real estate mentioned is situated assessed the property to “ Cyrus Warford Est.,” and as resident lands are assessed, and levied thereon or against Cyrus Warford Est.” a tax of $68 and issued the usual warrant to the school district collector for its collection. The warrant was returned to the trustees of the school district with the collector’s affidavit that he was unable to collect this tax. A certificate was then made by the trustees and presented to the treasurer of the county of Tioga, who presumably paid it. The treasurer then presented to the board of supervisors at a meeting in 1896 this certificate, and the supervisors assessed the $68 tax to Zafia M. Chadwick, the applicant here. This tax was not paid and apparently was returned by the town collector as- uncollectible, and in 1897 the board of supervisors reassessed this tax with the $80 unpaid tax hereinbefore mentioned, together with five per cent penalty, making in all $155.40, and assessed it upon the land as non-resident. In September, 1898, the county treasurer of Tioga county sold the premises for $196.22, being the tax so reassessed with five per cent penalty, $24.57 interest and $7.85 expenses of sale, and in May, 1899, to redeem the property, the applicant paid to the treasurer of Tioga county the sum of. $210.06.

There does not appear to be any statute which authorizes the method of procedure for the collection of a school tax so erroneously assessed. "What authority exists is to be found in the Consolidated School Law (Laws of 1894, chap. 556). Title 7, article 7, of that law covers the whole subject. The trustees, like town assessors, are required to assess real estate to the person or persons or corpo-. ration owning or possessing the same at the time such tax-list shall be made out.” That they cannot assess lands to an “ estate ” needs no argument. The same reasoning which results in the conclusion that such an assessment is unauthorized when made by a town assessor is applicable here. The assessment by the trustees, therefore,, was void, and the property was in law “ omitted ” from the trustees’ tax list. It was not assessed to any person or corporation, nor was it ¿assessed as non-resident land. The manner prescribed for trustees 'to be pursued in the assessment of non-resident land is declared to be the “ same manner as required by law from town assessors in making out the assessment-roll of their towns.” (Consol. School JLaw, tit. 7j art. 7, § 71.).

The only cure for a tax list which has omitted property in the -school district which should have been assessed or cure for any other ■error is that specified in title 7, article 7, section 84 of this School Law. ’The tax list may be amended and corrected by the trustees of the ¿school district with the approval of ■ the Superintendent of Public .Instruction. The town assessors cannot place upon the roll any prop-erty omitted from a district school tax. list, nor can the board of supervisors. They have nothing whatever to do with it. The trustees ■ ¿alone can do that with the consent of the Superintendent of Public Instruction, and this must be done, if done at all, before any certifi-cate is made by the trustees to be presented to the county treasurer, Lor such certificate must follow the tax list in all respects (School Law, tit. 7, art. 7, § 73) and be “ a true transcript ” thereof. When it -appears to the county treasurer that a valid assessment upon land was made and is shown by the transcript of the school district tax list he may pay the same and deliver this certificate which is- a transcript of the tax list to the board of supervisors, and the duty of the board of ■supervisors is wholly clerical; that is, they must cause the descrip"tion of the real estate given in the certificate or school district tax .list to be transferred to the town assessment roll together with the tax therein appearing unpaid “ with seven per cent of the amount in addition thereto” (School Law, tit. 7, art. 7, § 75), and there.after such taxes are enforced in the same manner as the State and •county taxes.

The county treasurer is not authorized to pay any tax improperly levied nor has the board of supervisors any right to transfer to the assessment roll any such tax. The certificate of the school district, trustees, being a transcript of the school district tax list, is informar tiori to both treasurer and supervisors as to any infirmity appearing on the face of the certificate. Here it is alleged, and not denied, that this tax list showed an assessment of real property to “ CyrusWarfordEst.” ■ The certificate is required to be aitranscript of this, and the treasurer and supervisors were so informed that the assessment was void. The- tax should not have been paid by the treasurer, and the supervisors should have refused to transfer the void tax to the town assessment roll.

As before said, the whole scheme for levying and collecting school taxes is contained in this title 7, article 7, and it is a complete method in itself ■ and should be substantially followed. If any different, method be followed or there be a substantial departure from the method here pointed out the tax will be illegally imposed, arid the party in interest will be entitled to have the tax refunded. (Matter of Adams v. Supervisors, 18 App. Div. 415; affd., 154 N. Y. 619.)

The County Court of Tioga county should have granted the application of the petitioner and should have ordered the school tax refunded together with all penalties and interest and costs and expenses charged thereon and included in the sum of $210.06 paid by the applicant, and interest thereon from May 29, 1899.

The order appealed from is reversed, with ten dollars costs and disbursements, with leave to the appellant to renew the application, in the County Court.

All concur; Pabkeb, P. J., and Smith, J., in result.

' Order reversed, with ten dollars costs and disbursements, with leave to appellant to renew the application in the County Court.  