
    JOHN L. REDMOND, et al., Respondents v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.
    
      Assessments void for want of certain publication—Illegality not appearing on the record—Designation of paper, when not legal, when force of spent— Voluntary payment, what is not.
    
    The non-publication, in newspapers designated for that purpose pursuant to the requirements of statute, of the resolution and ordinance authorizing the re-paving and the laying and re-laying crosswalks of and in a street for the paving of which an assessment has once been paid, and directing an assessment for the expense thereof, renders the assessment illegal and void. Such illegality does not appear on the face of the record.
    A designation not communicated to the common council does not constitute a legal designation; consequently under such a designation there are no papers in which the proceedings could be published pursuant to the statute. The force of a designation for a particular year is spent at the close of the year, and does not continue until another designation is made ; consequently there is no presumption of the publication of proceedings had after the expiration of such year in the papers so designated.
    Where the owner, neither he nor his predecessors in title being chargeable with knowledge ofthe facts that rendered an assessment void, is obliged to, and does pay it in order to procure a loan upon his property, such payment is not a voluntary one.
    Before Freedman and Ingraham, JJ.
    
      Decided November 3, 1890.
    Appeal by defendant from a judgment entered on the decision of the court upon a trial before the court without a jury.
    This action is brought to recover back the amount paid by plaintiffs to defendant for an assessment levied on their property for paving Thirty-sixth street between Seventh and Eight avenues with Belgian or trap block pavement and for laying and re-laying crosswalks at the intersecting streets and avenues.
    It appeared on the trial that the ordinance authorizing the work and directing an assessment for the expense thereof provided that it should be done under such directions as should be given by the Croton aqueduct department, and also provided as to relaying those crosswalks already laid, that only those should be relaid which in the opinion of the Croton aqueduct board were not in good repair or not upon a grade adapted to the grade of the proposed new pavement. It appeared the street had been before paved, and an assessment levied therefor which had been paid. It further appeared that the said ordinance and the resolution recommending its adoption were not published as required by the seventh and the thirty-seventh sections of the charter of the city of New York passed in 1857. The resolution and ordinance were adopted by the board of aldermen on October 4, 1869, and by the board of assistant aldermen on October 23, 1869, and approved by the mayor December 24, 1869. The assessment was confirmed by the board of revision and correction of assessments on November 2, 1871, and its title was entered in the record of titles of assessment lists confirmed in the bureau of the collector of assessments on September 9, 1872, and in the office of the clerk of the bureau of arrears on November 13,1871.
    It appeared that on December 1, 1868, certain newspapers were by written paper, dated that day, signed Thomas Coman, Mayor, Bichard B. Connolly, Comptroller, designated by the mayor, and comptroller as papers wherein the proceedings of the common council or either branch of it and the notice of its committees, should be published. There was no evidence that this designation was communicated to the common council, the evidence tended to show that it was not communicated, and the trial court so found. No newspapers were designated as corporation papers by the mayor and comptroller from January 1,1869, until the summer of 1871. It also appeared that on July 6,1867, a proper designation was made for the year 1867, there was no evidence as to its having been communicated to the common council, and there is no finding on that point.
    Other facts appear in the opinion.
    
      William H. Clark, counsel to the corporation, and George L. Sterling of counsel, for appellant, argued.
    I. The plaintiffs have not shown that the assessment confirmed in 1871 was illegal. The respondents appear to claim the contrary because the ordinance for the doing of the work was not advertised as required by certain statutes. The proof is that in 1867, a designation of papers for the publication of corporation ordinances was made and presumptively (there is no finding on that point) communicated to the common council as required by statute, viz.: Laws of 1867, chap. 586, p. 1596. The presumption is always that every act that ought to have been performed by city officials in connection with the levying of assessments has been performed, unless the contrary is made to clearly appear. Matter of Hebrew Asylum, 70 N. Y. 476 ; Matter of Bassford, 50 lb. 512 ; Matter of Williamson, 3 Hun, 65-68 ; Matter of Gantz, 85 N. Y. 536 ; Bigelow v. Boston, 120 Mass. 826. It is also appears that on December 1, 1868, a designation was also made, but that it was not communicated to the common council. The ordinance for the doing of the work was approved by the mayor, December 24, 1869. The only ground on which the plaintiff can rely, therefore, is that because the designation made in 1868 was not communicated to the common council, the assessment is illegal on the authority of Matter of Anderson, 60 N. Y. 457. It appears that chapter 853 of the Laws of 1868 was not complied with. But although that was the case the designations under the Act of 1867 remained in force until new ones were made. Matter of Folsom, 56 N. Y. 60. It will be found, we think, that none of the following cases on which the plaintiff will doubtless rely conflict with Matter of Folsom on this point. Matter of Burmeister, 76 N. Y. 174 ; Matter of Douglas, 46 lb. 42; Matter of Aster, 50 lb. 363 ; Matter of Smith, 52 lb. 526 ; Matter of Phillips, 60 lb. 16 ; Matter of Anderson, 60 lb. 457 ; Matter of Burke, 62 lb. 224 ; Matter of Levy, 53 lb. 637.
    II. The payment was voluntary, and the money cannot be recovered. The ordinance in this case contains a delegation by the common council to the Croton aqueduct board of the discretion vested in the former body.. The ordinance, a copy of which was attached to the assessment list, contains a provision that crosswalks may be relaid where in the opinion of the Croton aqueduct board they are not in good order or are not on a grade adapted to the grades of the new pavement. It is thus -left to the Croton aqueduct board to determine what crosswalks shall be relaid. This makes the assessment utterly illegal and void and the invalidity appears on the face of the record, and therefore, the payment of the assessment was voluntary. Matter of Emigrant Industrial Savings Bank, 75 N. N. 388 ; Matter of Trustees of the Presbytery, 9 Daly, 357 ; Phelps v. The Mayor, etc., 112 N. Y. 216 ; Tappan v. Young, 9 Daly, 357. In the present case it not only appeared that it was left to the discretion of the Croton aqueduct board to determine whether any, and if any, what crosswalks should be relaid, but also that an item for the relaying was included in the assessment, The latter fact distinguishes this case from Burchell v. Mayor, 30 N. Y. State Reporter, 418. The following are the principal cases in point besides those to which we have already referred : Fleetwood v. Mayor, 2 Sandf. 475 ; Wilcox v. The Mayor, 21 Jones & Spencer, 436 ; Peyser v. The Mayor, 70 N. Y. 497 ; Sprague v. Birdsall, 2 Cow. 419 ; Clarke v. Dutcher, 9 lb. 674 ; Supervisors of Onondaga v. Briggs, 2 Den. 26 ; N. Y. & H. R. R. Co. v. Marsh, 12 N. Y. 308 ; Sanford v. Mayor, 33 Barb. 147 ; Union Bank v. Mayor, 51 lb. 159 ; Flower v. Lance, 59 N. Y. 603 ; Sexton v. Pepper, 28 Hun, 31 ; Chase v. Chase, 95 N. Y. 373 ; Lamborn v. County Commissioners, 97 U. S. 181 ; Union Pacific Ry. Co v. Commissioners of Dodge Co., 98 lb. 541 ; Oceanic Steam Navigation Co. v. Tappan, 16 Blatch. 296 : Union Ins. Co. v. City of Allegheny, 101 Penn. St. 250, is a case in point.
    
      James A. Deering, attorney and of counsel, for respondents, argued:—
    I. The assessment in question was void for the reason that the resolution and ordinance of the common council providing for the paving of 36th street and for the assessment of the expense thereof had not been published as required by the 7th and 37th sections of the then charter (1857) of the city. Chap. 446, Laws of 1857, §§ 7 and 37; chap. 853, Laws of 1868 ; Matter of Douglas, 46 N. Y. 42; Matter of Smith, 52 lb. 526; Matter of Burmeister,76 lb. 174. In the latter case the court said: “ In this case the evidence tended to show and without explanation was sufficient to- establish that no legal designation of papers was made under the Act of 1868 because upon the authority of Anderson’s Case, supra, such designation was not communicated to the common council, or was any evidence produced which would obviate the force of that requirement in that Act, or from which an inference could be drawn that it had been complied with. We cannot go back of 1868 because the selections in 1867 were limited to one year (In re Burke, 62 N. Y. 224). As the case stands we must assume that at the time this ordinance was passed there were no papers designated, neither according to the Act of 1870 or 1868, in which these proceedings could have been published, and this being so, the common council were expressly prohibited from passing the ordinance in question.”
    II. The plaintiffs are entitled to recover the assessment for the reason that it was in fact null and void because the ordinance and resolution providing therefor were wholly void and that the facts establishing this want of jurisdiction, namely, the invalidity of the ordinance providing for the work and the assessment did not appear upon the face of the assessment list. Tripler v. Mayor, 53 Hun, 36 ; Jex v. Mayor, 103 N. Y. 536; Bruecher v. Portchester, 101 lb. 240, 244 ; Strusburgh v. Mayor, 87, lb. 453 ; Home v. Town of New Lots, 83 lb. 100 ; Peyser v. Mayor, 70 lb. 497 ; National Bank of Chemung v. Elmira, 53 lb. 49 ; Newman v. Supervisors, 45 lb. 676 ; Bank of Commonwealth v. Mayor, 43 lb. 187.
    III. The payment of the assessment was involuntary and the money may be recovered. The circumstances under which the payment was made constitutes duress in fact. Tripler v. Mayor, 53 Hun, 36 ; Manhattan College v. Mayor. Supreme Court, Special Term, May 1890, Lawrence, J.; Connelly v. Mayor, Supreme Court Special Term, May 1890 ; Vaughan v. Portchester, 6 N. Y. St. Rep. 68.
    IV. There was duress in law as well as in fact. Peyser v. Mayor, 70 N. Y. 497 ; Tripler v. Mayor, 53 Hun, 36 ; Jex v. The Mayor, 103 N. Y. 536 ; Bruecher v. Portchester, 101 lb. 240 ; Strusburgh v. The Mayor, 87 lb. 453 ; Horn v. The Town of New Lots, 83 lb. 100 ; National Bank of Chemung v. Elmira, 53 lb. 749 ; Newman v. Supervisors, 45 lb. 676 ; Marsh v. Brooklyn, 59 lb. 280 ; Union Bank v. 
      Mayor, 51 N. Y. 638 ; Bank of Commonwealth v. Same, 43 lb. 189 ; Robertson v. Frank Brothers Co., 132 U. S. 17 ; Diefenthaler v. The Mayor, 111 lb. 331. Phelps v. The Mayor, 112 N. Y. 216 has no bearing on the present action. There the assessment was invalid upon its face. It resembled Smart v. Palmer, 74 N. Y. 183, and Wells v. City of Buffalo, 80 lb. 253. In the present case the plaintiffs had no knowledge whatever as to the facts making the assessment illegal. There is no evidence, even inferential, that they had any actual knowledge as to frauds vitiating the assessment; but assuming that they knew, such knowledge on their part is immaterial. This is a new element entirely, or rather an attempted distinction, but without substance. Knowledge or want of knowledge of the fact constituting the invalidity of the assessment is wholly immaterial where the right to recover is founded upon duress in fact or in law. It is no part whatever of coercion in fact or in law. It is the simple fact that the assessment is in the nature of an enforceable judgment that constitutes, coercion or duress, as defined in Peyser’s case; knowledge of the fact that it is actually void, or in part illegal for jurisdictional or extrinsic reasons, may only make the coercion greater. If the assessment were assailed for the reason that it was paid in mistake of the facts, want of actual knowledge would have some bearing ; but the single ground is .that being apparently a valid assessment, it was per se a judgment that might be or could be or was in process of enforcement. Judge Folger in Peyser’s case said : “As he cannot resist the execution of it when- execution is attempted, he may as well pay the amount at one time as at another and save the expense of delay.” The analogy to judgment of courts was stated in Peyser’s case ; yet in all cases of .judgment the party paying the judgment has already contested the other’s claim, knows all the facts—all spread upon the record—yet when the judgment is reversed or action brought to recover the amount paid, he may recover. Actual knowledge has no bearing whatever upon the question of the right. The cases cited by the city’s counsel as follows : Thetwood v. Mayor, 2 Sandf. 475 ; Forest v. Mayor, 3 Abb. 350 ; Wilcox v. Mayor, 21 Jones & Spencer, 436 ; Sprague v. Birdsall, 2 Cow. 419 ; Clarke v. Dutcher, 9 lb. 674 ; Supervisors v. Briggs, 2 Den. 26 ; N. Y.& R. R. v. Monk, 12 N. Y. 308 ; Union Bank v. Mayor, 51 Barb. 159. Flower v. Lance, 59 N. Y. 603 ; Secton v. Pepper, 28 Hun, 31; Lambern v. County Commr., 97 U. S. 181; Union Pacific Railroad Co. v. Commrs., 98 lb. 541 ; were all long anterior to Peyser v. The Mayor and subsequent cases, and bear no analogy, in fact or in law, to the New York city assessment cases. Long quotations are made from the United States cases, but in both the Supreme Court applies the local law of the state from which the appeal came. That court, however, in the first cited case expressly refers to the fact that in those states where a future sale for non-payment would confer an apparently valid title a payment to remove a cloud upon the title would be compulsory. A judgment alone is technically coercion. Lott v. Swezey, 29 Barb. 87-94 ; Robertson v. Frank Brothers Co., 132 U. S. 17.
    
    V. The fact that the statute imposed interest at seven per cent, for non-payment of the assessment, and that such interest was accruing thereon was sufficient to constitute duress in fact. Robertson v. Frank, 132 U. S. 17 ; Union Bank v. Mayor, 51 N. Y. 638 ; Bank of Commonwealth v. Same, 43 lb. 189.
    VI. Another fact which under the special laws applicable to taxes and assessments in city of New York would make the payments involuntary is that a sale of the property for non-payment thereof could have been made by the city. Scott v. Onderdonk, 14 N.Y. 9 ; Haywood v. Buffalo, 14 lb. 534 ; Ward v. Dewery, 16 lb. 519 ; Hatch v. Buffalo, 38 lb. 279 ; Allen v. Buffalo, 39 lb. 386 ; Crube v. Andrews, 40 lb. 549 ; Newell v. Wheeler, 48 lb. 486 ; Astor v. Mayor, 5 J. & S. 581.
   By the Court.—Ingraham, J.

It is, I think, clear that the ordinance of the common council providing for the work and assessment in question, and the assessment imposed under the provisions thereof, was void under the rule adopted by the court of appeals in re Burmeister, 76 N. Y. p. 177, and that such invalidity did not appear upon the face of the assessment list. The defendant could not, therefore, have enforced the assessment.

It is also clear that if the plaintiff had been compelled to pay the assessment, and did pay it without knowledge of its illegality, plaintiff would be entitled to recover back the amount so paid in this action. Jex v. The Mayor, &c., 103 N. Y. 536 ; Tripler v. Mayor, &c., 53 Hun, 36. It is claimed on behalf of the defendant that the payment was voluntary and for that reason could not be recovered back. I am, however, unable to find in this case any facts that would make the payments of the assessment a voluntary one. The person who paid the assessment expressly testified that she had no knowledge that the assessment was void and that its payment was necessary because of the refusal of a trust company to make a loan upon the property until the assessment was paid. There is nothing to charge either the plaintiffs or their predecessors in title with knowledge of the facts that rendered the assessment void. The payment was not, therefore, a voluntary one, "and the plaintiff was entitled to recover. Tripler v. The Mayor, &c„, 53 Hun, 36.

The judgment should be affirmed with costs.

Freedman, J, concurred.  