
    In the Matter of the Application of the Trustees, etc., of the Village of Delhi, Delaware County, N. Y., Respondents, for an Order of the Court Directing the Board of Supervisors of Delaware County, Appellant, to Refund Certain Taxes, etc.
    Third Department,
    June 29, 1910.
    Tax — town, assessment roll — correction — power of supervisors and County Court—jurisdiction.
    Under section 16 of the County Law providing that a hoard of supervisors “may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to. sucli hoard * * * and cause to he refunded to any person the amount collected from him of any tax ille- ■ gaily or improperly assessed and levied, and upon the order of. the County Court it shall refund any such tax,” only such errors can he corrected by the hoard of supervisors or the County Court as are- manifest from an inspection of the roll itself without argument or evidence.
    Where part of the water works of a village were situate outside its limits in the adjoining .town and the-town'levied an assessment against the village for “Waterworks, 45 acres,, valuation $14,000,”'and the village, without taking any proceedings-to correct the roll, paid the'tax and then applied to the supervisors for a refund on the ground that only eight acres of the water works were outside the limits, which application was denied, the County Court has no jurisdiction to apportion the tax and remit a portion of it.
    Appeal by the Board of Supervisors of Delaware County from an order of the County Court of Delaware county, entered in the office of the clerk of said county on the 21st day of December, 1909, directing the refund of certain taxes, with notice of an intention to bring up for review an interlocutory order entered in said clerk’s office on the 26th day of October, 1909, appointing a referee. . .
    
      Andrew J. McNaught, Jr., for the appellant.
    
      Charles L. Andrus and H. J. Hewitt, for the respondents.
   Houghton, J.:

The village of Delhi, in the county of Delaware, is the owner of its village water works system, used for municipal purposes, and the land'connected with it is located partially within the village limits and partially outside in the town bearing the same name. In the years 1902 to 1907, both inclusive, the town assessors of the town of Delhi assessed the village for “ Water works, 45 acres, valuation $14,000,” and also two lots of ten acres and three acres respectively at $200 and $25, both of which were outside the village limits. It is conceded that the major part of the forty-five acres constituting the larger portion of the water works system, which in the aggregate is stated to be of the value of $50,000, lies within the corporate limits ■ of the village, and it is claimed that the value of that part outside the village limits is about one-seventh of the whole. Nor is it disputed, as matter of law, that the portion of the water 'works system within the village limits is exempt from taxation for town and county purposes. Without appearing before the board of assessors on grievance day, or taking any proceedings to correct the alleged defects in the assessment roll, the village of Delhi paid the tax for the years above stated. At the annual session of the board of supervisors of Delaware county in 1908, the village presented a petition asking that all of the taxes which it had paid be refunded, with interest, on the ground that they were illegally and erroneously assessed and levied. The village did not offer to produce any proof before the board, or ask that there be an equitable apportionment of the tax. This request to repay the tax was denied, and thereupon the village presented to the County Court of Delaware county a petition asking that an order be made directing the board to refund that portion of the taxes which were assessed and levied upon the water works system located within the corporate limits, on the basis that that part of the water works system located within" the village limits was of the assessable value of $12,000, and that, portion located outside of the assessable value of $2,000. This petition' was served upon the boai’d, together with a notice of presentation and motion, and the board presented its answer denying certain allegations of the petition and challenging the jurisdiction of the County Court to separate and apportion the assessment and taxes' and to determine that a portion was legal and a.portion illegal, or that, under the situation presented, it had any jurisdiction to order restitution. Against the protest of the board, an order was made appointing a referee to ascertain and report to the court what pro- • portion of the water works system was situated within the village limits and what proportion of the taxes paid should be borne by that | part located outside the village limits. Upon the matter coming on before the referee for hearing, the board protested against any proceedings being had on the ground that both the County' Court and the referee were without jurisdiction in the premises. Thereupon it was proved that thirty-seven acres of the forty-five-acre, tract were located within the corporate limits and eight acres outside, and that on the basis of $14,000 for the whole, with improvements, $2,000 was a fair assessment for that portion lying outside the village limits. The County Court confirmed the report of the referee, making a decision in accordance therewith, and ordered that the board refund to the petitioner fifty fifty-sevenths of the tax paid, amounting to $1,339.07, together with $366.97 interest thereon. From such order the board of supervisors appeals, bringing up for review the intermediate order appointing the referee.

Section 16 of tlie County Law (Gen. Laws, chap. 18; Laws of 1892, chap. 686; Consol. Laws, chap. 11; Laws of 1909, chap. 16) contains the only authority for action in such case either by the hoard of supervisors or the County Court, and it reads as follows: “Any such board [of supervisors] may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to such board, or which may, or shall have properly come before such board for its action, confirmation or review; and cause to he refunded to any person the amount collected from him of any tax illegally or improperly assessed or levied, and upon the order of the County Court, it shall refund any such tax.” This law contemplates a presentation of the matter to the board of supervisors in the first instance before application shall be. made to the County Court, and if power exists and the facts justify it that court ,may direct the tax to be refunded, whether the conclusion of the board shall have been favorable to the claimant- or not. (Matter of Buffalo M. G. L. Co., 144 N. Y. 228; Matter of Adams v. Supervisors, 154 id. 619; Matter of Village of Medina, 52 Misc. Rep. 621; affd., 121 App. Div. 929.)

The present statute differs essentially from the provisions of section 5 of chapter 855 of the Laws of 1869, as amended by chapter 695 of the Laws of 1871, which specifically provided that an application for the refunding of any tax illegally levied and collected might be made by the person aggrieved, in the first instance to the County Court upon notice to the board of supervisors. It was this section of these laws which was under consideration in Williams v. Board of Supervisors (78 N. Y. 561) and in Matter of New York Catholic Protectory (77 id. 342) and in Matter of Ulster County Savings Bank (20 Hun, 481) and in Harris v. Supervisors of Niagara County (33 id. 279). These authorities, therefore, upon which the respondents rely do not apply.

The appellant claims that the present application to the County Court was virtually an original application because the board of supervisors was asked to refund the entire tax which had been paid, and the petition to the County Court asked only for a refunding of the tax as apportioned between that part of the water works system lying within the village limits and that outside and in the town. But even if the application to the County Court be deemed properly one to review- the action of the board of supervisors in refusing to refund the tax, we are of the opinion that the order must be reversed and the proceeding dismissed.

The tax as levied was not void on its face. The town board of assessors had jurisdiction and it was proper for them to assess all that part of the water works system of the village outside its corporate limits. If there was any illegality in the assessment and subsequent levy by the board .of supervisors, extrinsic evidence was.necessary to demonstrate it. It was only upon proof that a part of the tract of land comprising the water works system was within the corporate limits that any illegality could be claimed, and then confessedly it.was necessary to apportion the tax between that part outside the limits, which was taxable and over which .the assessors had complete jurist diction, and that part inside the corporate limits, which was not taxable and over which the assessors had no jurisdiction. The village made no protest on grievance day that the assessors had assessed the eight acres outside the corporate limits at too high a figure. The whole water works system was proved to have been of the value of $50,000. Manifestly the assessors had the power to assess the eight acres at $14,000, and confessedly under the statute in question a tax cannot be refunded because the assessors were guilty of overvaluation. The only thing appearing upon the assessment roll upon which can be founded a mistake is that the assessors assumed tó assess the whole water works system consisting of forty-five acres and placed the total value at $14,000.' Conceding this to be a mistake and that the .assessors erroneously assessed and. intended to assess at that sum the entire water works system, the difficulty arises from lack of power to correct it. In order to remedy the error in any respect the assessment roll must be corrected by apportioning the assessment as made between the eight acres over which-' the assessors had jurisdiction and the- remaining thirty-seven acres over which they had no jurisdiction. Neither the County Court nor the board of supervisors can assess the eight acres outside the village' limits; nor can either say at what figure the eight acres should have been assessed or at what figure the assessors intended, to assess it. The assessors cannot impeach their own roll which has all the effect of a judgment after it is completed. It will not answer the purpose to prove the relative value of that'part of the water works system outside the village limits and say that the assessors must have had such value in mind. That would amount to an assessment which the assessors alone have power to make. The assessors may have deemed it of much greater value, and in the absence of correction on grievance day, any value which they put on it would be binding. Having jurisdiction to assess the eight acres, for the purpose of upholding the assessment, it may as well be said that the mistake consisted in designating the tract as forty-five acres instead óf eight acres.

If any mistake was made we are of the opinion that it was hot such a^oxie -as either the board of supervisors or County'Court had the pywer to remedy. In Matter of Buffalo M. G. L. Co. (supra), where the present statute was under consideration, the court expressly held that so far as the assessment roll itself was concerned only such errors could be corrected as were manifest from an inspection of the roll itself without argument or evidence. To the same effect is Broderick v. City of Yonkers (22 App. Div. 448); Matter of Baumgarten (39 id. 174), and United States Trust Co. v. Mayor, etc. (144 N. Y. 488). In Matter of Adams v. Supervisors (supra) the assessment itself was void, arid in Matter of Edison Electric Illuminating Co. (22 App. Div. 371) the board itself had improperly extended the tax against the corporation for State .purposes as was-.also the case in Matter of Buffalo M. G. L. Co. (supra).

If these views be correct, it follows that the orders must be reversed, with ten dollars costs and disbursements, and, the proceeding dismissed.

All concurred.

Orders reversed, with ten* dollars costs and disbursements, and proceedings dismissed.  