
    TRIPLER v. MAYOR, &c. OF NEW YORK.
    
      N. Y. Court of Appeals ;
    
    
      February, 1891.
    [Reversing 53 Hun, 36.]
    1. Municipal corporations ; assessments for local improvement.] A letter sent by the commissioner of Public Works, together with the statement of expenses of an improvement transmitted to the board of assessors pursuant to the statutory requirement that he “ certify the total amount of all the expenses,” etc., is not a part of the record, in such sense, that the assessment can be deemed void on its face by reason of a statement contained in the letter.
    2. The same.] The act of the board of assessors in fastening the letter to the statement, does not make it part of the record.
    3. The same ; extraneous facts on record.] The commissioner could not by certifying in his statement facts not called for by the statute, make them part of the record.
    
    4. Definitions^] The term void on its face as applied to a record means that no evidence other than an inspection of the record is necessary in order to prove its invalidity .
    
    5. Evidence of Ignorance '.] Lapse of time, long delay of the city to enforce an assessment, coupled with the existence of written evidence on file in the public offices of the city, and the promulgated decisions of the courts that a similar assessment was void, are adequate evidence that the owner who finally paid the assessment in order to give apparent clear title on selling, was not ignorant of the facts rendering the assessment void.
    6. Payment voluntary.] One who pays an assessment, with knowledge of facts outside the record which render it void, when the city has taken no steps toward enforcing or collecting it, pays it voluntarily, and cannot recover back the money. The mere publication of a notice and demand fixing the time within which to pay in order to save interest being added by way of penalty, ' although it may perhaps be deemed a step to enforce the assessment, when complied with by paying within the time fixed, is not such an effort to enforce as will avail one who disregards it and pays for other reasons long afterward.
    
    7. Cases limited.] The case of Peyser v. Mayor, etc., of N. Y. 70 N. Y. 497, and others, which liken assessments to judgments, . reviewed and. limited.
    8. Money paid under coercion.\ It seems that even paying a judgment with knowledge of extrinsic facts rendering it void', would prevent recovering back the amount.
    9. Vendor and Purchaser.] A vendor who pays an assessment of long standing, not because its enforcement is attempted by the city, but because its removal is required by a purchaser, must, in order to recover the money back from the city, on evidence that the assessment was void, show that the payment was made in ignorance of the facts rendering the assessment void.
    Appeal from a judgment of the Supreme Court, General Term, First Department, affirming judgment for plaintiff.
    Isabel S. Tripler brought this action to have an assessment for a local sewer improvement in the Boulevard between gad and 106th streets in N. Y. City declared void, and that she recover the money which she paid in satisfaction thereof.
    The work was done at the expense of the defendants and the cost wTas distributed over the property deemed benefited by the improvement. A part of this expense was assessed upon the plaintiff’s property, and the sum of $3,076.50 was paid by her on January 29, 1887. On December 19, 1887, this suit was brought.
    It is claimed by the plaintiff that the assessment is utterly illegal and void because the work was done by the Commissioner of Public Works as a so-called “ days’ work job,” by which the Commissioner of Public Works directly employed laborers by the day, whereas the contract ought to have been made with the lowest bidder after due advertisement.
    Further facts appear in the opinion.
    
      The Supreme Court, at General Terrti (affirming judgment for plaintiff and applying the rule that payment of an assessment void on its face- cannot be recovered back if voluntary) held that payment in order to clear title to obtain a mortgage loan is a voluntary payment; but that in this case the assessment was not void on its face; and in the case of such assessments payment was not deemed voluntary' (Reported in 53 Hun, 36.
    
      D. J.Dean and G. L. Sterling (Wm. H. Clark counsel to the corporation), for th.e defendants’ appellants.
    I. The payment was voluntary. ■ The decisions of this Court in Matter of Blodgett, 91 N. Y. 117 (1883) ; Matter of French, 93 N. Y. 634 (1883), that this very assessment was null and void, had already been made.
    If the plaintiff had refused to pay this assessment and had sold the property, with an agreement to convey a good title, the Courts would have compelled the purchaser to take the property with this alleged assessment outstanding.
    That was done in Chase v. Chase (95 N. Y. 373), where previously this Court had hel the assessment illegal and void in another case.
    The latest opinion of this court on the question of voluntary payment of assessments was in Phelps v. The Mayor (112 N. Y. 216). There the ordinance contained an illegal delegation by the Common Council to the Commissioner of Public Works of the discretion vested in that body. Plaintiff had paid the assessment, and sued to recover the money.—Held, that the payment was voluntary and that no recovery could be had. In Van Nest v. The Mayor, etc. (113 N. Y. 652), the Phelps case was followed, but no opinion was written.
    In the Van Nest case the improvement was an underground drain. The assessment was held to be illegal because the act under which the work was done purported to authorize a trespass, and to allow the doing of the work in violation of the constitutional pi'ovision that private property cannot be taken for public purposes except by due process of law and on compensation to the owner.
    The Phelps case was again followed in Vaughan v. Portchester (115 N. Y. 637), without opinion.
    The latter case reversed the general term of the Second Department. The opinion of the latter court is reported in (43 Hun, 427, and 6 N. Y. State Reporter, 681). The plaintiff relied on that case at the general term.
    In the Vaughan case, as appears from the report in Hun, the complainant alleged that the plaintiff, in order to give good title and convey the premises, was obliged to and did pay under protest the assessment, and that she was compelled to pay in order to carry out her agreement to convey to the purchaser, and reserved the l'ight to sue for and recover the amount so paid.
    The assessments were illegal and void and were subsequently so declared by judgment of court.
    The defendant demurred.
    The general term held that the assessment was an apparent lien, and that the payment was involuntary and that the money could be recovered.
    The court of appeals, however, on the authority of the Phelps case, reversed the judgment, and ordered judgment for defendant unless plaintiff should amend and pay costs.
    In addition to the ones referred to above, the following are the principal cases in point: “ In New York 
      
      State: Fleetwood v. The Mayor, 2 Sandf. 475 (1849), followed in Forrest v. The Mayor, 13 Abb. Pr. 350 (1861); Wilcox v. The Mayor, 21 Jones & Spencer, 436 (1886); approved in Peyser v. The Mayor, 70 N. Y. 497, (see below). Sprague v. Birdsall, 2 Cow. 419 (1823),“ Clarke v. Dutcher, 9 Cow. 674 (1824); Supervisors of Onondaga v. Briggs, 2 Den. 26 (1846); N. Y. & Harlem R. Co. v. Marsh, 12 N. Y. 308 (1855); Sanford v. The Mayor, 33 Barb. 147 (1860) ; The Union Bank v. Mayer, 51 Barb. 159 (1868); In Flower v. Lance, 59 N. Y. 603 (1875) ; The. case of Peyser v. The Mayor, 70 N. Y. 497 (1877) ; Wells v. Buffalo, 80 N. Y. 253 (1880); Sexton v. Pepper, 28 Hun, 31 (1882); See also Burchell v. The Mayor, 30 N. Y. State Rep. 418; Sands v. The Mayor, 13 Id. 61 ; Redmond v. The Mayor, 33 Id. 763; Smyth v. The Mayor, 33 Id. 804.
    
      In the United States Cotirts: Lamborn v. County Commissioners, 97 U. S. 181 (1877); Union Pacific Railway Company v. Commissioners of Dodge County, 98 U. S. 541 (1878); Oceanic Steam Navigation Company v. Tappan, 16 Blatchford, 296 (1879); Little v. Bowers, 134 U. S. 547 (1889).
    
      In the Pennsylvania Courts: Union Insurance Co. v. City of Allegheny, 101 Penn. St. 250 (1882).
    
      James A. Deering, for the plaintiffs, respondents.
    
      
       S. P. Erickson v. Smith, 2 Abb. Ct. App. Dec. 64, and cas. cit,
    
    
      
      For a good discussion of the distinction between void and voidable see State v. Richmond, 6 Fost. N. H. 236, approved in Reed v. Lane, Vt. 1889, abst. s. c. 40 Alb. L. J. 217.
    
    
      
       See next case and note at the end of it.
    
   Peckham, J.

I do not think this assessment is void on its face. It is said to be so because the Commissioner ■of Public Works at the time he transmitted to the Board of Assessors the statement of the total amount ■of all the expenses which had been actually incurred by the Mayor, etc., on account of the work of constructing :sewers in the district in question, also sent a letter which accompanied such statement, but was separate :and distinct from it, in which letter the Commissioner .says,“ the work was commenced in 1873 by day’s work and was so nearly completed when it came under my charge in January, 1876, that it was impracticable to make contract for the remainder of the work, as I should have done if any considerable quantity of work had been left uncompleted.”

The defendant now alleges that this letter accompanying the statement of expenses for the work, which, was transmitted by the Commissioner of Public Works to the Board of Assessors, became a part of such statement and therefore a part of the record of the proceedings for levying the assessment, and that it showed5 facts which rendered the assessment void on its face.

I think this contention cannot be maintained. By the statute relating to the subject the duty of the Commissioner of Public Works was simply to “ certify to the said Board of Assessors, the total amount of all the-expenses which shall have been actually incurred by the-Mayor, Aldermen and Commonalty of the city of New York on account ” of the local improvement for the-expenses of which the certificate is made. The bald fact of the total amount of the expenses is alone provided for by the statute. How the Commissioner made up this total, what was the character of the work, by whom performed, and whether by contract or day’s-work, were facts which, however material in other places and in connection with other matters, had no statutory place in the statement which the Commissioner was commanded to transmit to the Board. Indeed the Commissioner, it is seen, so understood it, for his statement made under the authority of the law,, contained not a word more than the law demanded and simply gave the total amount of the expenses incurred. The letter accompanying the statement w.as-no part of it and was no part of the record of assessment. That the-members of the .Board of Assessors pinned or fastened' it to the statement did not in the least alter the character of the record or of the letter.

But even if the contents of the letter had been included in and had formed a physical portion of the statement, the effect would have been the same. The. facts recited in the statement other than that which the statute provided should be stated by the Commissioner, are not thereby made by his act a part of the record. The Commissioner could not make the record consist of anything more than the law provided for, and he. could not make any statement of his a part of such record any further than the statute provided.

This court held in Board of Water Commissioners, v. Lansing (45 N. Y. 19), that a statement in a return which the statute provided the appraisers should make, of some fact other than such as the statute demanded, was no part of the return, and was no evidence of the truth of the fact stated. The existence of the fact itself was material, and because of the absence of other and satisfactory proof of its existence, the judgment was reversed in this court.

Rapallo, j., said that no authority was given to the appraisers to report any fact other than the sum which they estimated, and that the report or certificate of an officer is evidence only of facts, which, by law, he is authorized or required to certify. To same effect Wolfe v. Washburn (6 Cow. 261); Anderson v. James. (4 Robt. 35).

The term “ void on its face,” as applied to a record, implies that no evidence other than an inspection of the record is necessary to prove the fact of invalidity. If this statement in the letter of the Commissioner be no part of his duty to make, it is not evidence of the fact stated, and the party desiring to prove the fact would have to prove it by other evidence (Parr v. Village of Greenbush, 72 N. Y. 463).

The assessment is not necessarily void even though the labor had been performed by day’s work.

The common council could, by a three-fourths vote, authorize the work to be thus done. The fact that it had not thus voted was proved by other evidence. It seems to me we must treat this assessment as one which is valid upon its face, but which was void on account of the existence of facts de hors the record. We are thus brought to the question, was this a voluntary payment? On May 24, 1881, the assessment was confirmed, and on May 28, in the same year, the Clerk of Arrears in the manner required by statute gave notice of its confirmation to the parties interested, and required payment thereof on or before July 27, 1881, and stated that in default thereof interest would bé added at the rate of seven per cent, from the date of ■confirmation. The demand of payment required by statute was simply a published notice requiring the amount to be paid to the proper officer within sixty days or the assessment would bear interest as stated.

The plaintiff did not comply with the demand, and the city took no steps whatever towards enforcing the payment of this assessment from that time forward. On January 29, 1887, or nearly six years after the confirmation of the assessment, the City still remaining absolutely passive as to enforcing the same, the amount of the assessment laid on the plaintiff’s land, together with interest, was paid to the Clerk of Arrears by the attorney for the person to whom the plaintiff herein had sold the property, out of the consideration money reserved for that purpose by the purchaser, and such payment was so paid to free and clear the premises from the lien and incumbrance of the assesssment in accordance with the terms of sale and deed from the plaintiff to the purchaser. This is the finding of the court as to the manner of payment and the person who made it.

Under the law in New York there were sixty days after the confirmation of an assessment during which it drew no interest. The law provided for the publication for ten days of the notice above described. After the expiration of the sixty days and for three years, after its confirmation, the assessment might be paid with the interest accruing thereon, and after the expiration of the three years it became the duty of the Clerk of Arrears, under the direction of the Comptroller, to advertise the lands affected by the assessment for sale, and to sell them at auction on a day and at a place to be specified in the notice, for the lowest term any one would take them for and pay the assessment, with twelve per cent, interest thereon. The first three years had passed, and the plaintiff had paid nothing. Nearly three years more passed raway, and the city authorities still took no step whatever under the law to advertisé the lands for sale, but, on the contrary, remained wholly passive ; and it is after this length of time that the plaintiff gave aúthority to pay, and for the purpose as already stated.

In her complaint the plaintiff alleges she paid the assessment in ignorance of the facts which rendered it void, and under a mistake as to those facts as well as. by coercion of law.

The court does not find that the plaintiff paid or permitted payment of the assessment in ignorance of the facts which rendered it void. Nor are any facts found from which an inference of such ignorance could fairly be drawn. Upon looking at the evidence to see if there is any upon which to support a finding of such fact, we are forced to say there is none. The great lapse of time from the confirmation to the payment of the assessment, during which the city made no attempt to collect it, the existence of facts proved by written evidence on file in the public offices of the city, and open to the inspection of all who chose to look, and by which the invalid character of the assessment might be easily discovered, the fact that this court in the cases, of two similar assessments (Matter of Blodgett, 91 N. Y. 117, and Matter of French, 93 Id. 634), based upon precisely the same grounds, had in two distinct litigations decided both assessments to be void, and that both decisions had been reported at large in the official series of the reports of this court, the omission of the plaintiff to pay the assessment during all these years when if it were valid, interest was running upon it at the rate of twelve per cent., these facts might well permit •a finding of knowledge on the plaintiff’s part of the invalidity of the assessment when she authorized its payment ; if, therefore, in order to prove that the payment was involuntary, it must appear in a case like 'this where there was no coercion in fact, that it was made as the plaintiff alleges in her complaint; this payment was made, viz., in ignorance of the facts which render the assessment invalid, then the plaintiff here has failed to make out her case, and the judgment in her favor must be reversed.

The very word used to describe an involuntary payment imports a payment made against the will of the person who pays ; it implies that there is some fact or circumstance which overcomes the will and imposes a necessity of payment in order to escape further ills.

There can be no claim made here that this payment was made by any coercion in fact. There was no threat ■of taking person or goods, and no payment of money was necessary to obtain immediate liberty of person or possession of property. Neither was in the possession ■or control of the city.

Was there such coercion in law as would render the payment involuntary? Assessments have been likened to judgments, and indeed have been called quasi adjudications of inferior tribunals, and coercion in law has been said to exist where a court, having jurisdiction of the person and subject-matter, has rendered a judgment which is collectable in due course, for in such case the party cast in judgment cannot resist its execution, and his only remedy is an appeal and a reversal of it for ■error. And as he cannot resist it when execution is attempted, he may as well pay the amount at one time ■as at another, and save the expense of delay. This is practically the language of Folger, J., in the case of Peyser v. Mayor, etc., of the City of New York (70 N. Y. 597).

The opinion in the Peyser case proceeds upon the •assumption that the party paying was not aware of the facts which rendered the assessment void. He says, as the party cast in judgment cannot resist its execution when execution is • attempted,, he may as well pay the amount at once. This is said in the case of a judgment of a court (which he likened the assessment) which had ■obtained jurisdiction of the person and subject-matter, and where it is stated there is no way by which to resist the execution of, such judgment, except by way of a reversal thereof on appeal.

In such case there is coercion in law, say the courts. By parity of reasoning it is said that as an assessment is a quasi judgment, in such case there is also coercion in law. But what is the case ? It is where there is no defense and no remedy other than an appeal, and the party, if an attempt should be made to enforce it, has no legal means of resisting the execution of the judgment. And he, in such case, may anticipate its enforcement and pay without writ or process. Does a person pay under coercion of law who pays with knowledge of facts outside of the record, which render the assessment wholly void, where the city takes no steps towards enforcing or collectng it? In such case I think he is not, to use the language of Judge Folger in the Peyser case, a party cast in judgment, who cannot resist its payment, and who has no remedy but a reversal. He has the right at once to commence his action to set aside the apparent lien of the assessment as a cloud upon his title, and to enjoin its collection, and he may do this before any step is taken towards enforcing the assessment. With such knowledge and with such right, if a person choose, nevertheless, voluntarily to pay, it is no hardship to hold he cannot recover it back. In such case no reason exists for permitting him to pay it with full knowledge that the assessment is utterly void and in the absence of any attempt on the part of the city to enforce payment, and in then allowing him to sustain such an action as this to recover back the money so paid. If the owner of the judgment, or the city in case of the assessment, sought to enforce payment, the party might pay even with knowledge, and still recover back. But one against whom a judgment is rendered, or upon whose land an assessment is laid, apparently valid, although in truth utterly void by reason of facts outside of the record, who pays it with full knowledge of those facts and without the slightest attempt to enforce payment of either the judgment or assessment, cannot, in any just view of the case, be regarded as making an involuntary payment by coercion in law. If the judgment be so far valid as that it cannot be set aside in any other fashion than by a reversal for error, it is not within the principle I have stated. The facts must be outside of the record and must be of such a character as to render the judgment or assessment void. It has been urged that the Peyser case showed no further or other attempt to enforce the assessment than is to be found in this case, and that the attempt in this case was simply the publication of the notice and the demand already described. It is then also stated that it was held in the Peyser case that such published demand was in the nature of process, and amounted to such an attempt to enforce the payment of the assessment as justified the plaintiff in paying the same. The two cases, however, are not entirely similar. In the Peyser case I think it is assumed that the payment was made in ignorance of the facts and in the belief that the assessment was really as valid as on its face it appeared. If it be now claimed that such fact does not appear in the case and that in reality it was decided without special reference thereto, it must be answered that there is a difference in the facts in these cases under which the payments were made. I think it evident that in this case there was no such coercion in law as to render the payment involuntary. In the Peyser case, the party paid within the time covered by the notice in order to save the interest, which is a penalty. In this case she did not, but waited nearly six years thereafter and then paid under wholly different circumstances. Where the circumstances are thus different, I am of the opinion that, the doctrine of the Peyser case does not apply. It may be difficult to say exactly what step should be regarded as such an attempt to enforce the payment of an assessment as would authorize its payment and make it involuntary, where the assessment is void for extrinsic facts known to the payer, or for how long a time its virtue as such attempt shall last. In this case, there has never been any attempt to enforce payment other than by the publication of a notice and demand, and the effect of that publication as an effort to enforce payment or as a demand of payment within sixty days to avoid the running of interest, had been lost by great lapse of time.

Hence, we must say in the case before us, there was no coercion in law, unless the plaintiff is able to show she paid the assessment in ignorance of the facts, which rendered it wholly void.

In the cases I have examined, the point under discussion has not always been made or alluded to. It has been assumed in many cases, and in most or all of them the complaint has contained the allegation that the payment was made in ignorance of the facts, where there was no coercion in fact by duress of person or of goods. There is no case that I have been able to find. in which it has been held that a party has a right to recover back the moneys paid upon such facts as exist here, if plaintiff paid with full knowledge.

In Purssell’s case (85 N. Y. 330), it appeared by his evidence that he was ignorant of the facts which rendered the assessment void, and the court held that as owner of a valuable leasehold interest in the land, he could profit by the fact that the owner of the fee had had the assessment set aside, as he was bound, by his covenant to pay all assessments.

Diefenthaler v. Mayor, etc. (111 N. Y. 331), only held that money which the owner has involuntarily paid can be recovered back as therein stated. The complaint therein alleged the plaintiffs were ignorant of the facts -constituting the illegality of the assessment when they paid it. What was necessary to constitute an involununtary payment was not discusséd or decided.

No question was made about the involuntary character of the payment.

The fact appeared in Strusburgh v. Mayor, etc. (87 N. Y. 452), that such payment was made in ignorance and that no degree of vigilance which could have been expected or demanded by the plaintiff, would have enabled him to discover the illegality of the assessment.

In Horn v. Town of New Lots (83 N. Y. 100), no question of this kind arose because the money of the plaintiff, while in the hand of the Kings county clerk was levied upon by the collector of the town and paid to the county treasurer of Kings county to the credit of that town. The plaintiff never paid the money to any one, but sought to recover it from the town.

In Bruecher v. Village of Portchester (101 N. Y. 240), the assessment was valid upon its face, and the court based its decision upon the fact that a valid warrant was out for its collection, and hence there was coercion in fact.

In Jex v. Mayor, etc. (103 N. Y. 536), the complaint alleged that the plaintiff was ignorant of the defect in the proceedings and was required to, and did pay the amount of the assessment under coercion of law.

In Bank of the Commonwealth v. Mayor, etc. (43 N. Y. 184), the money was collected on a warrant, and it was held to have been paid under coercion.

Robertson v. Frank. Brothers Co. (132 U.S. 17), was a clear case of duress in fact. To avoid a penalty, illegal though it were, and to get possession of their goods, which were of a perishable nature, the defendants in error made the addition in their invoices required by the custom-house officials, the direct and uecessary effect of which was to make the defendants in error pay higher duties on their imported property.

In the Purssell case {supra) Judge Rapallo was of the opinion that the Peyser case was decided on the theory that the assessment was in the nature of a judgment and the city was bound to repay what had been received by it in payment of the judgment, upon a reversal thereof, and that it was not a case for the application of the doctrine of voluntary payments. In so speaking, the learned judge undoubtedly had in his mind the case of a payment in ignorance of the facts.

In the case of a judgment strictly so called, which is void from intrinsic facts, it might be admitted that, if the party paid it with knowledge thereof, and where no steps were taken to enforce it, yet, if on appeal it were reversed for error, he might avail himself of the reversal to recover back the money paid. In that case he does not avail himself of the intrinsic facts in order to obtain the reversal, and it might well be that the principal permitting the recovery of moneys paid on a judgment afterwards reversed on error would apply.

But if a party should pay a void judgment, with fuH knowledge of the extrinsic facts as above stated, and without any coercion or threat, and then on those very iacts should seek to set the same aside and to recover back the money so paid, I think the doctrine permitting a recovery back of money paid on a judgment subsequently reversed does not apply, and that the case is a clear one for the application of the doctrine of voluntary payments. I think the principle of the two cases, Vanderbeck v. City of Rochester (122 N. Y. 285), and Pooley v. City of Buffalo (Id. 592), is tc this same effect.

But the plaintiff now alleges there was coercion, in fact, because the statute imposed interest on the principal sum of the unpaid assessment, and a payment to-prevent the accruing of interest is claimed to be an involuntary one. There is no finding that the payment was made for that purpose, but there is a finding as to why the payment was made, which is at war with this contention. The running of interest had no terrors for the plaintiff, and the assessment remained unpaid until the execution of the contract alluded to in the findings.

Nor was there any coercion in law or fact arising from the fact that the plaintiff authorized the payment of the assessment in order to enable her to carry out the contract just spoken of. She was under no more-coercion in the case than if she had made no contract but desired simply to free her land from the apparent, lien of the assessment. If she authorized the payment with knowledge of the facts, and simply to enable her to carry out the terms of such contract, there was no-coercion in law (Phelps v. Mayor, etc., 112 N. Y. 216; Vaughan v. Village of Portchester, 115 N. Y. 637, reversing 43 Hun, 427.

I think in this case the law required plaintiff to prove-that she authorized the payment in ignorance of the-facts, and as there is no such finding and no evidence in the case upon which to base it, the judgment in her favor must for that reason be reversed and a new trial ordered, with costs to abide the event.

All the judges concurred, Ruger, Ch. J., in the result..  