
    EDWIN B. WILCOX, Appellant, v. THE MAYOR, &c., OF NEW YORK CITY, &c., Respondents.
    
      Invalid assessment—recovery of amount paid on.
    
    A payment made to relieve land of an apparently invalid assessment, before there has been any attempt to enforce it against the'person or the land, is a voluntary payment and cannot be recovered back.
    That the common council did not pass the necessary ordinance for the doing of the work, makes the assessment apparently invalid.
    
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
    
      Decided July 2, 1886.
    Appeal by plaintiff from judgment dismissing complaint entered on findings by judge at special term.
    The facts appear in the opinion.
    
      James A. Deering, for appellant:
    I. The assessment is void on the ground that there was no jurisdiction in the assessors to impose the assessment, or in the department of parks to do the work. As it was proven upon the trial that 155th street was laid out by the commissioners of streets and roads under the Act of 1807, and opened by the city August 1, 1837, no assessment could be laid for the work of grading it without an ordinance of the common council. No ordinance having been adopted, the assessors had not jurisdiction (In re Deering, 85 N. Y. 1 ; chap. 86, Laws 1813, § 175).
    IL The assessment is valid upon its face, and the facts showing the want of jurisdiction appeared by the testimony taken upon the trial. As the work was done on a street within the district committed to the jurisdiction of the department of public parks by chapter 565, Laws of 1865, which act dispensed with the necessity of an ordinance of the common council for work to be performed by that department and for the assessment of the expense thereof, and as the list contains the certificate of the assessors that they were “ duly authorized, directed and empowered to make a just and equitable assessment of the expense ” of the work in question, the assessment was valid on its face. Mo law requires any assessment list to contain a certificate by any officer of the regularity of all proceedings or of the facts showing jurisdiction. Nothing more is required than a certificate of the performance of the work and its cost. The circumstance that no ordinance of the common council was annexed to the list was not evidence presumptive or otherwise that the common council had not authorized both the work and the assessment (In re Bassford, 50 N. Y. 512).
    III. The plaintiff is entitled to recover the assessment paid by him because the assessment is in fact utterly void, on the ground that there was no jurisdiction in the assessors to impose the assessment or in the Department of Parks to do the work, and such want of jurisdiction does not appear upon the face of the list. It was not necessary that the assessment should be first vacated (Bruecher v. Portchester, 3 East. Rep. 736; Strusburgh v. Mayor, 87 N. Y. 453 ; Horn v. Town of New Lots, 83 Ib. 100 ; Peyser v. Mayor, 70 Ib. 497; National Bank of Chemung v. Elmira, 53 Ib. 49 ; Newman v. Supervisors, 45 Ib. 676 ; Marsh v. Brooklyn, 59 Ib. 280 ; Bank of Commonwealth v. Mayor, 43 Ib. 187). The rules established by the cases cited are : 1st. Where an assessment is in fact utterly void on the ground that there was no jurisdiction to' do the work or impose the assessment, and such want of jurisdiction does not appear upon the face of the list, an action may be maintained to recover back the money paid in satisfaction thereof without first having the assessment set aside or vacated. 2d. Where an assessment is merely irregular, informal or unjust, the assessors having jurisdiction to impose the same, then before an action to recover back the money paid in satisfaction thereof can be maintained, it is necessary to have the same vacated or annuled by the judgment of a court having jurisdiction of an action or proceeding for that purpose. 3d. Money paid to discharge an assessment valid upon its face to the officer authorized to collect the same and who has demanded payment thereof is not a voluntary payment.
    IV. The defense of voluntary payment as opposed to the claim of the plaintiff does not properly arise in this case. (1.) The money was paid to discharge a lien in the nature of judgment apparently valid upon its face. Payment of an assessment of this character, especially as here, after demand for payment by the collector of assessments, is not voluntary (Bruecher v. Portchester, supra ; Cases cited under Point III). (2.) Money paid on a void contract or obligation can always be recovered whether the payment was voluntary or not (Smith’s Executors v. Mayor, Daily Reg. Feby. 25, 1882 ; Pitchen v. Furen P. R. Co., 10 Barb. 406 ; Eno v. Woodworth, 4 N. Y. 249 ; Rice v. Post, 15 Johns. 503 ; Coffins v. Wendell, 1 Barb. 355). (3.) Coercion in fact need not be shown. The imposition of an apparently valid judgment or assessment lien is in law duress (Lott v. Swezey, 29 Barb. 87). (4.) But the notice and demand of payment in this case and the certainty of the penalty under the name of interest being added and the further fact of the certainty of an eventual sale of the premises under the statute, chapter 381, Laws of 1871, which declares the lease given by the comptroller presumptive evidence of the regularity of all the proceedings relative to the assessment and sale, rendered the payment in this case involuntary (Union Bank v. Mayer, 51 N. Y. 638 ; S. C., 43 Ib. 189; Scott v. Onderdonk, 14 Ib. 9 ; Marsh v. Brooklyn, 59 Ib. 280).
    V. That the plaintiff demanded relief that the assessment be vacated as well as judgment for the amount paid, will not bar his right to recover. A plaintiff is entitled to whatever judgment the facts admitted by the pleadings and proven upon the trial entitle him to, whatever the form of the demand for relief (Hemmingway v. Poucher, 98 N. Y. 281; Williams v. Slote, 70 Ib. 601). That the complaint also demanded that the assessment be vacated, is immaterial, because it was unnecessary to have the assessment first vacated.
    
      E. Henry Lacombe, corporation counsel, and George L. Sterling, for the respondents
    :—I. An action in equity to vacate an assessment is forbidden by section 897 of the Consolidation Act. The court below (Freedman, J.), has held the above statute conclusive against the defendants. The same view has been taken by the supreme court, both at special and general term (Jex v. Mayor, Opinion, Andrews, J., March, 1885; affirmed, 38 Hun, 638 ; Van Ness v. Mayor, Opinion, Van Vorst, J., July 23, 1885 ; affirmed 40 Hun, 631 ; see also, Heckman v. Mayor, &c., 22 Hun, 590 ; Mayer v. Mayor, &c., court of appeals, January 19, 1886). Strusburgh v. Mayor, &c. (87 N. Y. 452) is to be distinguished, and is limited in Knapp v. City of Brooklyn (97 N. Y. 520). It may be claimed that because the complaint demands that the assessment should be declared void, and makes a further demand for the recovery of the money, that a different case is made out than a mere action to vacate an assessment. There is no force in this, for no action to recover the money can be brought until the assessment has been set aside at the instigation of the plaintiff in a suit brought for that special purpose. The Act of 1858 provided an adequate remedy by petition, of which the plaintiff could have availed himself. The whole course of legislation shows clearly an intention to provide an exclusive remedy (§ 898 Consolidation Act, et seq.). Bvuecher v. Portchester, court of appeals, January 19, 1886, has no application.
    H. It is well settled that no action at law can be maintained to recover back money paid for a tax or assessment which has never been reversed, vacated or set aside (Strusburg v. Mayor, 87 N. Y. 452 ; Swift v. Poughkeepsie, 37 Ib. 511 ; Bank of Commonwealth v. Mayor, 43 Ib. 184; Marsh v. Brooklyn, 59 Ib. 280 ; Peyser v. Mayor, 70 Ib. 497 ; Wilkes v. Mayor, 79 Ib. 621).
    III. But even if this suit could be entertained, equity will not interfere where an assessment is void on its face, or where its illegality must appear in an attempt to prove the jurisdictional steps (Van Doren v. Mayor, 9 Paige, 387; Brooklyn v. Meserole, 26 Wend. 132 ; Heywood v. City of Buffalo, 14 N. Y. 534 ; Fleetwood v. City of New York, 2 Sandf. 475; Scott v. Onderdonk, 14 N. Y. 9 ; Crook v. Andrews, 40 Ib. 547 ; Marsh v. Brooklyn, 59 Ib. 280 ; Washburn v. Burnham, 63 Ib. 132). The illegality that exists in the assessment sought to be invalidated in this suit is the want of an ordinance authorizing the work. It is a case, therefore, precisely similar to Fleetwood v. City of New York (supra).
    
    IV. The payment of the assessment was voluntary, and cannot therefore be recovered back.. The assessment in this case being absolutely void, there was no obligation on the part of the plaintiff to make the payment which he desires to recover in this suit (Clark v. Dutcher, 9 Cow. 674; Peyser v. Mayor, 70 N. Y. 479; Fleetwood v. City of New York, 2 Sandf. 475 ; Forrest v. Mayor, 13 Abb. Pr. 350; Supervisors v. Briggs, 2 Pen. 26; Swift v. Poughkeepsie, 37 N. Y. 511; Flower v. Luce, 59 Ib. 603).
   By the Court.

Sedgwick, Ch. J.

The learned counsel for appellant, claims that he was entitled to recover for money had and received to his use. Although there is doubt that the action was brought for such relief, it will be assumed that the plaintiff could have recovered on such ground, if the testimony had justified it.

An assessment had been imposed upon plaintiff’s land, for regulating 155th street. The collector of .assessments published in the “City Record,” a “notice to property holders,” that the assessment referred to, confirmed and entered, had been received by his bureau for collection, and that payment made before a specified day would be exempt from interest, and after that day would bear interest at 7 per cent. After that without any warrant issued or further proceeding to enforce payment or any other demand, the plaintiff paid the assessment, which he now seeks to recover back, on the ground that he paid under duress of the assessment being apparently valid while in reality it was void.

It may be assumed that if the assessment were apparently valid a recovery could be had (Peyser v. Mayor, 70 N. Y. 497). But by the same case, if the assessment were apparently invalid, the payment was voluntary and there can be no recovery. On the argument it was admitted that if the defect in the proceedings which it was claimed made them void did appear on the face of the proceedings then there should be no recovery. The defect was, that the common council had not passed an ordinance for the doing of the work. In Fleetwood v. City of New York (2 Sanf. 475), to which reference is made in the case of Peyser, already cited, and seemingly approved, it was held that the fact that there was no ordinance of the kind passed, made the assessment apparently void. And it was further held that a payment of an assessment of such kind before there had been an attempt to enforce it, against the person or the land, was voluntary, and there could be no recovery of its amount from the city.

Judgment affirmed with costs.

Truax and O’Gorman, J J., concurred.  