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Where the board of supervisors add the amount of a tax so returned to the assessment-roll of residents, and thus charge it to one who has succeeded to the occupation of the land, their action is without jurisdiction and the tax thus charged is illegal. Id.

If such illegal tax has been collected and paid into the county treasury, an action as for money had and received will lie for its recovery, and no demand is necessary before suit, nor is it necessary to present the claim therefor to the board of supervisors for audit and allowance. Id.; and see per Allen, J., in Hill v. Supervisors of Livingston, 12 N. Y. 52 (1854). One treasurer's certificate only under section 4 (Laws 1885, chap. 427) is necessary to be transmitted with the collector's account. Colman v. Shattuck, 62 N. Y. 348 (1875); affirming 2 Hun, 497; 5 Thomp. & C. 34.

The return of the collector to the county treasurer is not evidence of the contents of the assessment-roll, to establish the invalidity of the assessment. Wood v. Knapp, 100 N. Y. 109 (1885).

§ 101. Rejection of taxes.-The comptroller shall examine every account of arrears of taxes on lands of nonresidents received from the county treasurer and reject all taxes entered therein, found to be erroneous, or charged on lands imperfectly described, and shall annually on or about September first, transmit to each county treasurer a transcript of the taxes of the preceding year in any tax district of his county, which shall have been rejected for any cause, with the grounds of such rejection. [Revisers' Note.- L. 1855, chap. 427, §§ 9, 16; R. S., 8th ed., 1131, without change of substance.]

§ 102. Admission of nonresident taxes by comptroller and its effect. The comptroller shall admit all such taxes, properly assessed, and credit the county treasurer therewith, and such account, when accepted by him, shall be deemed conclusive evidence of the regularity and validity of all taxes therein so admitted, and all prior proceedings in assessing the lands and levying and collecting such taxes, except when it shall be sațisfactorily proven to the comptroller that any such tax was paid in the county, or that there was no legal right to levy the same, or that it arose from a double assessment, the tax levied on one of which has been paid.

[Revisers' Note.-L. 1855, chap. 427, §§ 4, 9; R. S., 8th ed., 1129, without change of substance.]

The provision of Laws 1885, chap. 453 (amending Laws 1855, chap. 427, § 4), authorizing the State comptroller to relevy and collect the amount of a tax which shall be discovered to be illegal and void by reason of irregu

larity or defects or omission of statutory requirement, does not permit a relevy against resident occupants of a tax which was erroneously assessed against the nonresident owner, as such act will involve a new assessment against the occupants without an opportunity to be heard. People ex rel. Barnard v. Wemple, 117 N. Y. 77; S. C., 26 N. Y. St. Repr. 720; S. C., 53 Hun, 197; 6 N. Y. Supp. 732 (1889).

§ 103. Payment to the county treasurer of excess of arrears credited. If the arrears of taxes on lands of nonresidents credited to the treasurer of any county by the comptroller shall exceed the state tax in such county, the comptroller shall pay such excess, or the whole amount of such arrears, if there be no state tax, after deducting therefrom any balance due from the county, to the county treasurer, and the whole amount of such arrears and taxes shall thereafter belong to the state and be collected for its benefit.

[Revisers' Note. L. 1855, chap. 427, § 10; R. S., 8th ed., 1131,

without change of substance.]

§ 104. Cancellation of tax by comptroller. The comptroller shall cancel any tax credited to a county upon the books in his office, which he shall discover after the transmission of the annual transcript of rejected taxes of such county to the county treasurer, to be erroneous, or charged on lands imperfectly described, and charge such taxes to the county in which such lands shall lie, with the interest thereon from March first, in the year following the levy of the taxes, to February first next after such cancellation. The comptroller shall cancel any tax returned as unpaid if it shall be made to appear to him that previously to such return it was paid to the collector or county treasurer, and if it shall also have been paid into the state treasury, he shall cause it to be repaid out of the treasury to the person by whom such payment shall have been made.

[Revisers' Note.-L. 1855, chap. 427, §§ 17, 22; R. S., 8th ed., 1132, re-enacted in part, without change of substance.]

§ 105. Transmittal of statement of canceled taxes to board of supervisors.-The comptroller shall transmit a transcript of the returns of all taxes canceled, with the addition of interest thereon, to the county treasurer, who shall deliver a copy thereof to a supervisor of the tax district in which such taxes were

assessed, by whom it shall be returned to the board of supervisors at their next annual meeting. If such tax district shall have been divided since the assessment, the county treasurer shall deliver such transcript to the board of supervisors at their next annual meeting. If any such cancellation was by reason of the tax having been paid before the same was returned by the county treasurer, such treasurer, shall present the transcript to the board of supervisors of the county, and the amount of such tax, with the interest, shall be collected by such board of the collector or the county treasurer who made the erroneous returns, and shall be paid into the state treasury.

[Revisers' Note.-L. 1855, chap. 427, §§ 18, 23; R. S., 8th ed., 1132, without change of substance.]

§ 106. Correction of imperfect descriptions.- The supervisor of the tax district in which any lands are situated, upon which a tax shall have been rejected by the comptroller, or shall have been canceled and charged to the county to which it had previously been credited, shall add to the assessment-roll of the tax district in which the land is situated for the year during which a transcript of the returns of such taxes shall have been forwarded by the comptroller to the county treasurer, an accurate description of such lands, if he can obtain the same, the correct amount of taxes thereon, the tax of each year and each kind of tax separately, and shall furnish the comptroller with all such maps and surveys of such lands as shall be required by him. Such supervisor may, if necessary, cause a survey and map of each lot or parcel returned for more perfect description to be made, and the expense of such survey and map shall be a town charge. The board of supervisors shall direct the collection of such taxes so added to such assessment-roll, and they shall be considered the taxes of the year in which the description shall be perfected. If any such supervisor shall not fully comply with the provisions of this section the comptroller shall not thereafter admit, but shall reject, all such reassessed, canceled or rejected taxes as may be returned to him. If such taxes are not levied upon such lands as herein required, the board of supervisors shall cause the same, with interest thereon, to be levied upon the tax district in which originally assessed, and collected with the other taxes of

the same year. If the tax district shall have been divided since such assessment, such taxes and interest shall be apportioned by the board of supervisors among the tax districts included in the limits of such original tax districts in such equitable manner as it may deem proper.

[Revisers' Note.- L. 1855, chap. 427, §§ 26-30; R. S., 8th ed., 1133,

re-enacted without change of substance.]

The following act was passed by the legislature of 1896, and, although, the act which it amends is repealed by the Tax Law, such repeal does not operate to repeal an amendment passed at the same session as the Tax Law. (See Stat. Const. Law, section 33, ante.)

Laws 1896, chap. 951.

AN ACT to amend chapter one hundred and fifty-two of the laws of eighteen hundred and seventy-eight, entitled "An act further to amend section two of title two of chapter thirteen of part one of the revised statutes, entitled 'of the assessment and collection of taxes,' and to amend chapter four hundred and twenty-seven of the laws of eighteen hundred and fifty-five, entitled 'An act in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.""

Section 1. Section nineteen of chapter one hundred and fiftytwo of the laws of eighteen hundred and seventy-eight is hereby amended so as to read as follows:

§ 19. Whenever the comptroller shall have rejected any tax in the first instance, or have cancelled and charged the same to the county to which it had previously been credited, the supervisor of the town or ward in which such lands are situate, shall, if in his power, add to the assessment roll of such town or ward for the year during which such transcript shall have been forwarded by the comptroller to the county treasurer, an accurate description of such lands and the correct amount of taxes thereon, stating the tax of each year and each kind of tax, separately, and shall furnish the comptroller with all such maps and surveys of such lands as shall have been required by him; and, if necessary, he may cause a survey and map of each lot or parcel returned for more perfect description to be made and the expense of such survey and map shall be a charge upon said land to be

added to the tax thereon, and the board of supervisors shall direct the collection of such taxes and the expenses so added to such assessment-roll, and they shall, for all the purposes of this act, be considered as taxes of the year in which the description shall be perfected. If the supervisor of such town or ward shall not have full complied with the requirements of this section, the comptroller shall not thereafter admit, but shall reject all such reassessed, cancelled or rejected taxes as may be returned to him. Whenever any tax has been rejected by the comptroller and returned to the county to which it had previously been credited, the board of supervisors of such county or if there be no board of supervisors of such county, then the board of aldermen performing the duties of supervisors, shall direct that such rejected tax be cancelled upon the tax-roll in the office of the treasurer of the county, for the year or years for which it was levied.

§ 2. This act shall take effect immediately.

§ 107. Nonresident taxes, when and how paid to comptroller. The comptroller shall, at any time after August first, next after receiving statement thereof from the county treasurer, furnish any person desiring to pay the taxes on any parcel of land, a certificate of the amount of such taxes, interest and charges, and the State treasurer may receive payment therefor upon such certificate, which shall be countersigned by the comptroller and entered in the books of his office. Such interest shall begin August first, of such year, and be at the rate of ten per centum per annum. Any person claiming a divided or undivided part in any parcel may pay to the State treasurer any part of the amount due thereon, proportionate to the share or interest claimed by him, on the certificate of the comptroller. The remaining tax and charges shall be a lien on the residue of the land or interest only. If the land has been subdivided since the assessment, the comptroller may require a map of the subdivisions. Any person may pay the tax for any one year on any tract or lot of land without paying the tax of any other year.

[Revisers' Note.-L. 1855, chap. 427, §§ 30-32; R. S., 8th ed., 1134, without change of substance.]

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