
    Hannah P. Vanderbeck, Appl’t, v. The City of Rochester, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Taxes—Money paid by mistake of law, with knowledge op fact.
    Plaintiff, a widow, having no interest in premises belonging to her husband’s estate beyond that of dower, upon receipt of a notice that interest would be charged after a certain date upon an assessment, which had been levied two years before for opening a street, paid the same out of her own funds, although she knew that nothing had been done toward opening and working the street. Held, that she must be held to have paid the assessment voluntarily under a mistake of law, but with knowledge of th'e facts, and could not recover it back.
    Appeal from a judgment of the general term of the supreme court, fifth department, entered on an order affirming a judgment entered on report of the referee.
    
      John A. Barhite, for app'lt; Henry J. Sullivan, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 148.
    
   Parker, J.

This action was brought to recover the sum of '$468.72 paid to the treasurer of the city of Rochester. That being the amount of an assessment, less the credit allowed thereon by way of damages for-land taken, made upon real estate of plaintiff’s husband in his life time. When suit was instituted more than six years had elapsed since the payment of the assessment, but no steps had been taken to open and make available for public use the street which was the basis of the assessment. And the plaintiff alleged as the foundation of her right of recovery a failure on the part of the defendant to return any consideration for the money paid. But whether the law will permit a recovery against a municipality for moneys paid to it in obedience to a special assessment, in all respects valid when made, because of a subsequent abandonment of the proceedings, and hence a failure to afford the payor the special benefit constituting the consideration for the assessment, need not be considered at this time. For the payment made by the plaintiff must be regarded as voluntary and she held to be without redress in any event.

The assessment was made in March, 1877, and by its terms it became payable in three equal installments, and on the following dates, May 20, 1877, February 20, 1878, and February 20, 1879. The owner of the lands died intestate March 12, 1878, leaving him surviving a widow, this plaintiff, and two children. And the assessment having been made previous to his death, it was payable out of his personal estate, next after the payment of debts entitled to a preference under the laws of the United States. R. S., 7th ed., 2298.

It does not appear that the decedent’s personal estate was not adequate for the purpose. If it was not, the plaintiff was under no obligation to pay it. The only interest she had in the lands was that of dower. And that interest was not in jeopardy because, first, no steps had been taken by the respondent looking to a sale of the lands, and, second, as widow she was entitled to have her dower assigned to her unburdened with taxes and assessments payable out of her husband’s estate. Harrison v. Peck, 56 Barb., 251; Taylor v. Bentley, 3 Red., 34; Smith v. Cornell, 51 Supr. Ct., 354. The plaintiff then having no interest in the premises which was menaced by the assessment, upon the receipt of a notice that interest would be charged after a given date, voluntarily paid to the treasurer of defendant out of her own funds the amount of the assessment. This she did nearly two years after the assessment had been made and with full knowledge that nothing had been done towards opening and working the street. There was no mistake of fact and “ a voluntary payment made under a mistake of law, but with full knowledge of the facts, and not induced by any fraud or improper conduct on the part of the payee cannot be recalled.’’ Silliman v. Wing, 7 Hill, 159; Flynn v. Hurd, 118 N. Y., 19; 27 N. Y. State Rep., 744.

When a party would recover back taxes which he did not pay under a mistake of fact, and which he is under no legal obligation to pay, the payment must be compulsory. Dillon on Municipal Corporations, § 946; McCrickart v. City of Pittsburgh, 88 Pa. State R., 136; N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308.

The rule that money paid under a mistake of law cannot be recovered back has been frequently applied where the payment of an assessment, illegal and void on its face, has been made without coercion. Phelps v. Mayor, 112 N. Y., 216; 20 N. Y. State Rep., 238. The plaintiff was under no legal' obligation to pay the assessment. Ro attempt was made to compel payment from her. It is neither claimed nor proven that her action was induced by a mistake of fact. She must, therefore, be held to have paid the assessment voluntarily, and consequently bound by the rule of law which prevents the recovery back of a voluntary payment

The judgment should be affirmed.

All concur, except Bradley, J., not sitting, and Haight, J., not voting:  