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Autokefalos Orthodox Spiritual Church of St. George the Tropeopheros v. City of Mount Vernon
In an action to cancel taxes and tax liens on plaintiffs’ property, allegedly exempt from taxation by reason of the provisions of subdivision 6 of section 4 of the Tax Law, plaintiffs appeal from an order denying their motion to strike out the two affirmative defenses in the answer. The first defense pleads noncompliance with section 232 of the Charter of the City of Mount Vernon (L. 1922, ch. 490, as amd.); the second defense alleges laches.
Order reversed, with $10 costs and disbursements, and motion granted, without costs. Weighing the defenses in the light of the allegations of the complaint (cf. Commissioners of State Ins. Fund V. Farrand Opt. Go., 295 N. V. 493, 498, and Schwartz v. Klein, 272 App. Div. 834, 835), we are of the opinion that they are insufficient in law. Section 232 of the charter is inapplicable, as it relates to taxes assessed for “ a local improvement ” and no such assessments are here involved.
Moreover, where an institution is exempt under subdivision 6 of section 4 of the Tax Law, the assessors in making the assessments are without jurisdiction and act illegally and not merely erroneously. (Williams Inst. Colored M. E. Church v. City of New York, 275 App. Div. 311, 316, affd. 300 N. T. 716.) Under such circumstances, even though it be assumed that the charter provision is applicable, it is not effective to bar a collateral attack upon the tax by way of action (cf.
Dun <& Bradstreet v. City of New York, 276 N. T. 198, 206; Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234, 239; Fan Foorhis v. County of Monroe, 288 N. Y. 138; Saltser & Weinsier, v. McGoldrick, 295 N. Y. 499, 505; Matter of State Ins. Fund v. Boyland, 282 App. Div. 516, 518-520 and Matter of Autokefalos Orthodox Spiritual Church of St. George v. City of Mount Fernon, 283 App. Div. 801) and the issue of jurisdiction may be raised at any time (cf. People ex rel.
Erie R. R. Co. v. State Tax Comm., 246 N. Y. 322, 325, and Cooper Onion v. City of New York, 272 App. Div. 438, 441, affd. 298 N. Y. 578). Nolan, P. J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.