#### Michael Ernenwein, Plaintiff, *v.*Oneida County, Defendant.

(Supreme Court, Oneida Special Term,

July, 1898.)

Voluntary payment of taxes on property in part purchased with pension money, etc. — Taxable margin.

Voluntary payments of taxes, made during five years, upon land assessed at only $1,050, although costing, including improvements, at least $5,200, cannot be recovered by .the owner upon indistinct proof that from $2,700 to $3,000 of the purchase money and expenditures were derived by him from bounty, wages and pension money which he had received as a soldier. The court cannot assume that there is not a taxable margin in the. property.

Action to have declared void an assessment upon plaintiff’s real estate, upon the ground that .said real estate was purchased with bounty, wages and pension received by him as a soldier.

George C. Carter, for plaintiff.

*J. K.*O’Connor, for defendant.

Hiscock, J.

This action is brought to have declared void the assessment made upon certain real estate owned by plaintiff in each of the years 1.891 to 1896, both inclusive, and to> recover the taxes paid upon said assessments during said years, which amount with interest to the sum of about $103.53, all upon the ground that said real estate was purchased by plaintiff with bounty, wages and pension received by him as a soldier.

The property was assessed during all of said years at the amount of $1,050. Upon the purchase thereof plaintiff paid therefor the sum of $4,000 — $1,500 in cash and $2',500 by assuming and giving mortgages. It is claimed, although not very distinctly proved, that the $1,500 so paid in money was all the proceeds of bounty and wages received by plaintiff as a soldier. Subsequent to • the . purchase of said farm, which was some time prior to 189-2i, and by. 1892, the plaintiff claims to have expended upon said land the further sum of $1,200 or $1,500', claimed to have been pension money, The tracing of this sum as pension money into' the farm is also somewhat indistinct. No other fault or lack of legality or jurisdiction is alleged against the assessments than the one above noted. Plaintiff, during the years mentioned, never appeared before the board of assessors to object to the assessment made as aforesaid, or *217to ask to have it corrected or amended in any way. Uo actual compulsion was ever employed to enforce payment of the taxes assessed, but plaintiff voluntarily each year paid the amount of his tax to the collector.

ISTo evidence was given upon which the court could find that the amount of the assessment, $1,050, as above stated, was during any of the years in question a full valuation of the land, or that there was not a considerable margin of value over and above the amounts claimed by plaintiff to have been invested in said lands out of money received by him for bounty, pension, etc.

Under these circumstances it seems to be well settled that plaintiff cannot recover. McKibben v. Oneida Co., 25 App. Div. 361; Matter of Murphy, 9 Misc. Rep. 647; Matter of Peek, 80 Hun, 122; Trippler v. Mayor, 125 N. Y. 617; Vanderbeck v. City of Rochester, 122 id. 285.

Judgment is,- therefore, directed for defendant, but, as stipulated by its counsel upon the trial, without costs.

Judgment for defendant, without costs.