
    Sylvester Trimmer, App’lt, v. The City of Rochester, Resp’t (2 cases).
    
    
      (Court of Appeals, Second Division,
    
    
      Filed, January 20, 1892.)
    
    Municipal coepobations — Assessments — Action to eecoveb moneys PAID ON ILLEGAL ASSESSMENT.
    In case money is collected under an illegal assessment, it cannot be recovered until the assessment is set aside. And where the taxing officers of defendant omitted from the assessment roll realty benefited by a paving improvement, and for this error assessments against the taxpayers who brought actions to set them aside were adjudged illegal, this does not establish a cause of action for the recovery of the money paid by assignors of plaintiff upon assessments against their realty where said assessments had not been set aside, nor "any proceedings instituted for such purpose.
    Appeals from judgments of the general term of the supreme court of the fifth judicial department, which affirmed judgments dismissing the complaints on the merits, entered on the decisions of a special term.
    First Action.
    May 30, 1865, the common council of the city of Rochester, pursuant to chapter 143 of the Laws of 1861, the city charter, confirmed an assessment of $30,830, for curbing and paving Oak street, between Allen and Lisle streets, the sum being assessed upon property benefited by the improvement One-third of the assessment became due August 30, 1865, one-third May 30, 1866, and one-third May 30, 1867. The last two instalments bore interest at the rate of seven per cent from May 30, 1865. Among other property- assessed was a lot belonging to Thomas Brady, upon which there was levied $492, one-third of which, $164, was payable August 30, 1865, one-third May 30, 1866, with interest ■from May 30, 1865, and one-third May 30, 1867, with interest from May 30, 1865. August 30, 1865, Brady paid $164, and April 19, 1866, $174.15 the amount of the second instalment with interest. Prior to February 21, 1888, Brady’s right to recover the sums so paid by him was assigned to this plaintiff, who on the date mentioned demanded payment of the defendant of the sums and February 23, 1888, brought this action to recover the amounts paid, with interest from the dates of payment.
    Second Action.
    An assessment of $602.52 for the same purpose under the same statute was made at the same date against the lands of one Michael Brayer, one-third of which, $200.84, became due August 30,1865, one-third, with interest from May 30, 1865, on the 30th of May, 1866, and one-third, with interest from May 30, 1865, on the 30th of May, 1867. On the 28th of August, 1865, Brayer paid the first two instalments, $401.68, and November 7, 1866, the further sum of $98.00. Prior to September 6, 1888, Brayer’s right to recover the sums so paid was assigned to this plaintiff, and September 6, 1888, he demanded of the defendant the re-payment of the sums and on the next day brought- this action to recover the amounts.
    July 17, 1867, William B. Hasson and others (neither Brady nor Brayer being parties), brought an action to set aside the assessments against their properties upon the ground that certain benefited realty had been omitted from the roll. September 9, 1882, a judgment was recovered in the action adjudging that the assessments against the realty of the plaintiffs in that action were illegal and void by reason of such omission, and the city and its officials were restrained from collecting the assessments from the plaintiffs or out of their property. 65 N". Y., 516; 67 id., 528.
    
      D. Clinton Barnum, for app’lt; Henry J, Sullivan, for resp’t.
    
      
       Affirming 30 St. Rep., 703.
    
   Follett, Ch. J.

The taxing officers of the defendant omitted from the assessment roll realty benefited by the improvement, and for this error assessments against the taxpayers who brought actions to set them aside were adjudged to be illegal. Hasson v. City of Rochester, 65 N. Y., 516; 67 id., 528. There is a broad distinction between an assessment which is illegal by reason of the existence of some fact outside of the record and one void on the face of the record for lack of jurisdiction of the person or property, or by reason of the unconstitutionality of the statute under which the assessment is made. In the latter case, if money is compulsively obtained it may be recovered from the municipality in an action at law brought by the wronged taxpayer. But in case money is collected under an illegal assessment it cannot be recovered until the assessment is set aside. Horn v. Town of New Lots, 83 N. Y., 101; Purssell v. Mayor, 85 id., 330; Strusburgh v. Mayor, 87 id., 452; Bruecher v. Village of Port Chester, 101 id., 240; Jex v. Mayor, 103 id., 536; 3 St. Rep., 657.

The rights of persons from whom money is collected under such assessments are like those of persons from whom money is collected under judgments void, for example, for lack of jurisdiction, and those which are reversible for error. Money collected under void judgments maybe recovered without first setting them aside, but that collected under judgments erroneously obtained cannot be until they are reversed.

It is agreed that the assessments against the realty of the assignors of the plaintiff, and on account of which the money sought to be recovered in this action was paid, have not been set aside, nor have any proceedings or actions been instituted for such purpose.

The judgment in Hasson's case did not set aside all of the assessments, but only those against the property of the plaintiffs in that action, and the assessments against realty of the assignors of the plaintiff were not affected or invalidated by that judgment, and until they are set aside no action can be maintained to recover the sums paid under them. Matter of Delancey, 52 N. Y., 80; Wilkes v. The Mayor, 79 id., 621; Purssell v. The Mayor, 85 id., 330; Chase v. Chase, 95 id., 373.

The foregoing cases arose under special statutes regulating the remedies of tax payers in cases of illegal assessments in the city of New York. Chap. 338, Laws 1858; chap. 312, Laws 1874; chap. 550, Laws 1880. But Moore v. City of Albany, 98 N. Y., 396, did not arise under a statute affording aggrieved taxpayers special remedies, and it was there held that in case all the assessments on the roll were illegal for a common cause, not appearing on the face of the roll, or on the record on which it rested, a judgment vacating an assessment in favor of one taxpayer did riot vacate the assessments against the others. Reid v. Sup'rs of Albany, 128 N. Y., 364; 40 St. Rep., 90.

The result is that the plaintiff failed to establish a cause of action for the recovery of the money paid and the complaints were rightfully dismissed. These views render it unnecessary to consider the question of the effect of the statute of limitations.

The judgments should be affirmed, with costs.

All concur.  