(90 Hun, 501.)

#### PEOPLE ex rel. CANADAY v. WILLIAMS et al.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Taxation—Exemptions—Land Purchased with Pension Monet.

Land purchased with money of a lunatic, received as a pension from the United States, being exempt from sale under execution, is exempt irons taxation, though the title was taken in the name of the committee of the lunatic.

*2.*Certiorari—Review.

On certiorari to review a decision of the assessors facts conceded on the hearing before them cannot be disputed.

3. Same—Who may Make Application.

The committee of a lunatic as the “party aggrieved” (Laws 1880, c. 209,. § 1) may apply for a writ of certiorari to review the decision of the assessors, refusing to strike from the assessment roll property of the lunatic exempt from taxation.

4 Same—Costs on Reversal.

Under Laws 1880, c. 269, § 6, providing that costs shall not be allowed! against assessors whose proceedings may be reversed on appeal, unless; it appears they acted with gross negligence, or bad faith, or with malice, on reversal of a decision refusing to strike from the assessment roll as . exempt land purchased by the committee of a lunatic with money of the lunatic, received as a pension from the United States, costs should not be allowed against the assessors, as the question of exemption was not free from doubt.

Appeal from special term, Albany county.

Certiorari by George Canaday, as committee of Jeremiah Canaday, a lunatic, against James H. Williams and others, assessors, to review an assessment. From an order denying a motion to quash the writ, defendants appeal.

Modified.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,. JJ.

Strait & Betts (Henderson Peck, of counsel), for appellants.

McCall & Dyer (Zeb A. Dyer, of counsel), for respondent.

PUTNAM, J.

This is an appeal by defendants from an order of" the special term denying their motion to quash a writ of certiorari issued under the provisions of chapter 269, Laws 1880, to review an. assessment of certain real estate of which George Canaday, as committee of Jeremiah Canaday, a lunatic, holds the legal title. It was-placed on the assessment roll by defendants, the assessors of the town. of Nassau, N. Y., in the year 1894, against George H. Canaday individually. Relator appeared before said assessors by attorney on the-day appointed for hearing grievances, and claimed "that said real estate was exempt from taxation on the ground that it was owned by him as committee as aforesaid, and was purchased with pension money of said lunatic, received from the United States by said Jeremiah Canaday as a disabled sailor; and relator produced and read', to said assessors on said hearing a verified petition, showing the facts-as claimed by him. The assessors declined to strike said assessment from the roll, and relator obtained a writ of certiorari. The-court below appointed a referee to take evidence under the provL*66■sions of section 4, c. 269, Laws 1880, and on the report of said referee made findings which appear in the papers submitted to us. Among other things, the court found:

> “That George Ganaday, as committee of Jeremiah Oanaday, an adjudged lunatic, on said 22d day of July, 1889, became, and ever since has been, and now is, the owner of the premises described in the petition herein; that the money used for the purchase of the premises described in this proceeding was pension money received from the United States government by Jeremiah Oanaday, an honorably -discharged sailor in the United States navy; that the property described in the petition in this proceeding is not held by George Oanaday, as committee of .Jeremiah Ganaday, for and on account of the said Jeremiah Oanaday and the family of said Jeremiah Ganaday.”

Tn reference to the hearing before the assessors the following findings were made:

> “That on such hearing the petitioner, George Oanaday, filed with said assessors .his affidavit, showing that the land in question was purchased by pension moneys .for the benefit of a disabled sailor by moneys paid such disabled sailor by the United States; that upon such hearing the said petitioner, by his said attor.neys, stated to said assessors that if they were not satisfied that the statements •set forth in the petition were trae, he would have the petitioner appear in person, and would produce evidence before them to show that the money which purchased this farm was pension money received by said committee from the United States, and the said assessors replied that there was no need of doing that; that said assessors did not request the presence or appearance of said petitioner to make proof of the facts alleged in the petition; that said assessors did not request the production of any proof of the facts alleged in the petition; that said assessors refused to strike the said assessment of said property from said assessment roll of said town, and to assess said property as exempt property, ¡basing their decision on the ground that the law did not exempt said property jfrom taxation.”

The evidence in the case was sufficient to sustain these findings of fhe court below. As the title to said real estate was shown to be in .relator, as committee of said lunatic, and as it was purchased with .money of the lunatic’s, received as a pension from the United States, .and as property so purchased is exempt from levy and sale under .execution (Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108), and hence toy statute exempt from taxation, it would seem to follow that the assessment in question should have been stricken from the roll by the assessors on the application of relator, and that the court below reached a correct conclusion in the matter, unless certain positions ■taken by the appellants can be sustained. It is urged that relator .failed to show in the court below that he was duly and legally appointed committee of the person and estate of said lunatic. It is a ■sufficient answer to this position that no such claim was made on the hearing before the assessors. The relator produced his affidavit, .alleging his appointment as such committee, and, as the special term found, on competent evidence, offered to bring the lunatic before the .assessors, and produce evidence before them of the truth of the matters alleged in the petition; and the assessors waived the production of such proof. Also there was testimony below that assessors said to relator’s counsel on the hearing before them that they did not dispute the facts set forth in the petition; that they did not believe the law allowed them to exempt such property. A fact which was con*67ceded by the assessors on the hearing before them is not up for review on the certiorari to review their determination. The office of a certiorari is to review the decision actually made by the assessors. People v. Zoll, 97 N. Y. 203; In re Corwin, 135 N. Y. 245-251, 32 N. E. 16. The facts conceded and agreed upon by the parties on the hearing before the assessors could properly be deemed established on the hearing of the certiorari. There was no dispute as to the fact that the title of the property described in the petition was in George Canaday as committee. The defendant assumed to assess it against George H. Canaday individually. I think that under section 1, c. 269, Laws 1880, the relator, as' committee, was a person aggrieved by the action of the assessor^, and, under section 2340, Code Civ. Proc., he was authorized to sue out a writ of certiorari.

The papers submitted show that relator purchased the property in question on a mortgage sale under a mortgage held by him for the lunatic, taking title to George Canaday, as committee of Jeremiah Canaday, an adjudicated lunatic. Probably he should have taken title in the name of the lunatic. It is doubtful whether a committee of the person and estate of a lunatic has a right to take title to real estate in his own name for the lunatic. It is- held that a committee takes no title to a lunatic’s estate. He is a mere bailiff to take care of and to administer it under the direction of the court, and in fact is an officer of the court. In re Strasburger, 132 N. Y. 128, 30 N. E. 379; People v. Tax Commissioners, 100 N. Y. 215, 3 N. E. 85; Underhill v. Jackson, 1 Barb. Ch. 73; In re Otis, 101 N. Y. 580, 581, 5 N. E. 571; Pharis v. Gere, 110 N. Y. 336, 18 N. E. 135. I am inclined to think, therefore, that the purchase by relator- of the property in question, and taking title thereto in his own name, was unauthorized. But, assuming that such is the fact, and that relator, as committee, cannot legally hold real estate of the lunatic, it follows that under the provisions of the statute of uses and trusts he holds title to the property in question- as trustee of said Jeremiah Canaday, a mere naked title without interest. Siemon v. Schurck, 29 N. Y. 598; Reitz v. Reitz, 80 N. Y. 538. In this view of the case the title to the premises in question is in relator as trustee of the lunatic. As such trustee he holds a mere legal, naked title without any interest in the premises. He holds such legal,' naked title for the benefit of Jeremiah Canaday. I concluded, therefore, that as the land is thus held for the benefit of the lunatic, and as the latter is in fact the beneficial owner thereof, and such land was purchased with his pension, that it is exempt from taxation; and see no reason to doubt that relator, as committee, under the provisions of section 2340, supra, was authorized to maintain a certiorari to view the action of the assessors. Hence the determination of the special term should be sustained, except in one regard. In the order appealed from, costs were awarded against the assessors. By section 6, c. 269, supra, it is provided that costs shall not be allowed against the assessors or other officers whose proceedings may be reversed under the act, unless it shall appear that they acted with gross negligence, in bad faith, or with malice. The question submit-*68tea to the assessors was not free from doubt, and I think the papers submitted to us do not show such a state of facts as justifies an award of costs against them under the provisions of the act. In- this regard the order should be modified, and, as modified, affirmed, without costs..

MAYHAM, P. J., concurs. HERRICK, J., not acting.