
    BRUECHER v. VILLAGE OF PORT CHESTER.
    
      N. Y. Court of Appeals;
    
    January, 1886.
    [Affirming 31 Hun, 550; S. C., 17 West. Jur. 423.]
    A CTION FOR MONEY PAID.—MUNICIPAL CORPORATION; RECOVERY OP void assessment; Demand before suit.—Payment, WHEN DEEMED VOLUNTARY.
    One who has been compelled, by threat of a tax collector, holding a warrant to sell his premises for the payment of an assessment, to pay the assessment, and has done so under protest., can recover it back from the municipality into whose treasury it was paid, for such payment .to an officer who has valid process, which he can enforce and which he threatens to execute, is not a voluntary payment.
    The money having been taken from the plaintiff wrongfully, and the defendant having no right to retain it, no demand prior to the commencement of the action is necessary.
    In an action to recover back the amount of an illegal assessment which plaintiff had been compelled to pay, the complaint did not show that the assessment was invalid on its face, or that its invalidity would appear in any proceeding taken to enforce it ; but the complaint alleged a former adjudication in an action between the .municipality and third persons, in which it was adjudged upon the same issues as presented in this action, that the assessment was utterly void. Held, that this dispensed with the necessity which otherwise would have been on the plaintiff in the present action, to proceed to vacate th° assessment before suing to recover back the sum paid.
    If an assessment is merely irregular, informal or unjust, the assessors, nevertheless, having jurisdiction to impose it, then, before an action to recover back the money paid in satisfaction of it can be maintained, it is necessary to have it vacated or annulled in some way; but it is otherwise, where the assessment is in fact utterly void on the ground that the assessors had no jurisdiction to imp is? it.
    
      Appeal from a judgment of the general term of the first department, reversing a judgment of the special term entered upon an order sustaining a demurrer to the complaint.
    Francis Bruecher brought this action against the village of Port Chester, to recover money paid the treasurer of the village, to discharge an assessment upon a lot owned by the plaintiff.
    The complaint alleged, among other things, that the defendant had imposed an assessment, upon a lot owned by the plaintiff, and lying within its corporate limits ; that the proceedings resulting in the assess-, ment were “ prosecuted under color of, but in violation of, said statutes, and in disregard of their provisions,., to wit, among other things, in this, that the commissioners of estimate and assessment appointed under the said acts so known as the charter of said village as aforesaid, to apportion and assess the expenses of grading and regulating said proposed avenues upon the adjacent premises, did not take the oath required by said statute to be taken, nor did said commissioners, after making their estimates and assessments,' publish a notice of the time and place when and where interested parties could be heard in manner and form as required by said charter and statutes, whereby and by means of such omission the report of said commissioners and the confirmation thereof, and the said assessment upon said premises were illegal and wholly void in law. And the plaintiff says, that on the 27th day of February, in the year 1875, the warrant having been issued for the collection of the said assessment upon said premises so as aforesaid belonging to the plaintiff, and the interest and other expenses incidental thereto, amounting in all to the sum of $489.30, and the said defendant threatening to sell, and being about to sell, said premises for the payment of said, assessment, and the plaintiff having before that time sold said premises, and being under contract to convey the same free from all incumbrances, was unable to do so, while the same was so clouded and incumbered by said charge and assessment, and apparent Hen, and while the same remained so a cloud upon said premises, was compelled, in order to complete the conveyance of said premises, to and did pay unto the treasurer of said village, and into the treasury thereof, the said sum of $489.30, under protest, nevertheless, and the sum was received by said treasurer and paid into said treasury, as so paid under protest, to wit: that the said assessment was utterly void and of no effect, and that all the rights of the plaintiff should be and remain reserved to him, and in no way waived, foregone or pretermltted by such payment.55
    To the complaint, the defendant demurred on the ground that it appeared from the face of the complaint that it did not state facts sufficient to constitute a cause of action.
    
      The supreme court at special term sustained the demurrer upon the proposition that there was no averment in the complaint, that as to the plaintiff’s property the assessment had ever been adjudged to be illegal or void, and upon the further proposition that the declaration of its invalidity or illegality, made at the instance and on behalf of other parties, was not sufficient to sustain this action ; and upon the proposition, also, that no facts were set forth showing a want of jurisdiction in imposing the assessment, and that the propriety of such an act could not be reviewed in a collateral proceeding.
    
      The court at general term (reported 31 Hun, 550), reversed that decision, being of opinion that the allegations as to the omission to take oath were sufficient allegations of the want of jurisdiction, and that in the seeming confusion in the authorities, it was proper to hold that when an assessment is imposed on the land of an owner but asserted and exercised by. persons apparently invested with the power of imposing it, the owner might be relieved by action from the apparent cloud upon his title, which must subject him to inconvenience ; especially when a sale of the property is contemplated ; and that as in this case there was no doubt that if plaintiff had permitted his property to be sold he could maintain an action, he should not be required to submit to a sale, but the threat to sell, by the persons having apparent authority, was sufficient to establish duress, especially if the payment was under protest, for this was sufficient to show that there was no assent to the proceedings.
    From the judgment of the general term the defendant appealed.
    
      David B. Ogden, for the defendant, appellant.
    
      Isaiah T. Williams, for the plaintiff, respondent.
   Earl, J.

—It does not appear from anything alleged in the complaint, that this assessment was invalid upon its face, or that its invalidity would appear-in any proceeding taken to enforce it. The contrary must have been determined in the case of Merritt v. Village of Port Chester, but it is distinctly alleged i:i the complaint, and was decided in this court in tha r. case, that the assessment was in fact utterly illegal and void. Hence, it is not necessary for the plaintiff to institute any action or proceeding to vacate the assessment, and thus have it annulled or set aside before commencing this action. If the assessment had been 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 could be maintained, it would have been necessary to have the same vacated or annulled iii some way, and thus removed as an obstacle out of the way ; but where an assessment is in fact utterly void on the ground that the assessors had no jurisdiction to impose the same, then an action may be maintained to recover back money paid in satisfaction thereof without first having the assessment set aside, or vacated ; and so it has been held (Newman v. Supervisors of Livingston Co., 45 N. Y. 676; Strusburgh v. Mayor, &c. of N. Y., 87 Id. 452; Horn v. Town of New Lots, 83 Id. 100; S. C., 38 Am. Rep. 402). ■

These rules in reference to money paid upon assessments were established from the analogy which was supposed to exist between completed assessments and judgments. .Money paid upon a judgment which is merely irregular or erroneous -cannot be recovered back while the judgment remains in force. But money involuntarily paid upon a judgment which is utterly void can be recovered back without first causing the judgment to be reversed or vacated.

This was not a voluntary payment by the plaintiff within the rules of law applicable to such payments. We must assume that the assessment was valid upon its face, and that a valid warrant was out for its collection, and it has been repeatedly held that payment to an officer who has a valid process which he can enforce, and which he threatens to execute, is not a voluntary payment (Peyser v. Mayor, &c. of N. Y., 70 N. Y. 497; S. C., 26 Am. Rep. 624), and the money having been taken from the plaintiff wrongfully, and the defendant having no right to retain the same, no demand prior to the commencement of the aclion was necessary.

We are, therefore, of the opinion that the judgment should be affirmed, with costs.

All the judges concurred, except Millbu, J., absent.  