Bailey v. Buell 50 N.Y. 662

William Bailey, Respondent, v. Augustus Buell et al., Appellants.

(Argued June 11, 1872;

decided November 12, 1872.)

This action was brought against defendants as assessors of the town of East Bloomfield, Ontario county, to recover damages for an alleged illegal assessment.

Plaintiff was assessed by defendants in 1867 the sum of $188.66. He was not in fact a resident of the town. Having failed to pay the tax to the collector, the same was returned by him, and in August, 1868, the supervisor of the. town instituted supplementary proceedings under chap. 361 of the Laws of 1867, and on the 19th of September, 1868, an order was granted by the county judge of Ontario county, directing plaintiff to pay the tax or an execution would be issued against him for the amount.

On being served with a copy of said order, plaintiff paid the amount and costs to the county treasurer through his attorney. A verdict was rendered for plaintiff and exceptions ordered to be heard at General Term. »The General Term directed judgment on the verdict. Held (Grover, J., dissenting), that the order of the county judge was not authorized by the statute, and was void; that the payment was not compulsory or made under legal duress, but was voluntary, and plaintiff therefore could not recover.

H. O. Chesebro for the appellants.

E. A. Wash for the respondent.