
    Henry E. Bowns, App’lt, v. Moses May, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Taxes—Laws 1883, chap. 114.
    An unpaid tax assessed on a lot prior tó July 1, 1883, is the essential fact which must exist to confer jurisdiction on the board of assessors to assbss "a tax oh the lot under chap. 114, Laws 1883, and the determination by the board that such fact existed is not conclusive.
    3. Same.
    Wlieré it appears that such tax had been paid and extinguished, the proceedings of the board and the sale thereunder óf the land are void and convey no title to the purchaser.
    3. Same—Money had and keceived.
    The fact that the tax had been paid was not disclosed by any of the proceedings. Defendant, who was the purchaser at the sale, gave the necessary notice to redeem and plaintiff paid to the registrar the amount necessary tó redeem, which was paid to defendant. Held, that shell payment was not a voluntary one and that an action for money had and received would lie for its recovery.
    Appeal from a judgment of the general term of the supreme court of the second judicial department, affirming a judgment which dismissed the complaint on the merits.
    
      Brewster Kissam, for app’lt; Ira Leo Bamberger, for ibsp’L
    
      
       Reversing 46 Hun, 679, mem.
      
    
   Follett, Ch. J.

December 10, 1870, Elizabeth D. Brevoort was the owner in fee of a lot in the city of Brooklyn, on which a tax of $390.39 was on that day assessed, which was void for the failure of the assessors to comply with § 31 of title 4 of chap. 384 of the Laws of 1854, as amended by § 21 of chap. 63 of the Laws of 1862, which required the corrected assessment roll of every ward in the city to be “ sworn to by at least two of the assessors, according to the oath provided by law in regard to assessment rolls in the different towns of this state; and further, to the effect that they have, together, personally examined, within the year past, each and every lot or parcel of land, house, building or other assessable property within the ward.” Brevoort v. City of Brooklyn, 89 N. Y., 128. The case cited was decided May 2, 1882, and April 12, 1872, about eight years before that decision, the city sold the lot for the non-payment of this tax to A. S. Wheeler, for 100 years, for $446.09, and delivered to him a certificate of sale, which, March 7, 1873, he assigned to the United States Trust Company.

The holder of this certificate acquired no title to, or lien upon the lot by virtue of thfe tax, the sale or the certificate. Matter of Clementi v. Jackson, 92 N. Y., 591. On the 2d day of February, 1883, the plaintiff, through several mesne bonveyances, succeeded to the title of Mrs. Brévoort.

June 1, 1881, chapter 443 of the Laws of 1881 was passed, which appointed a board of commissioners authorized to readjust and relevy all unpaid taxes theretofore assessed except those on account of which sales had been made and certificates of sale given to others than the city of Brooklyn. June 15, 1882, this act was amended, chapter 348, Laws of 1882, so that the owners of land in that city on which the unpaid taxes equalled, or exceeded, sixty per centum of the assessed valuation as fixed in the year 1881, might extinguish such unpaid taxes by paying on or before December 1, 1882, amounts fequal to sixty per centum of such assessed valuation.

June 27, 1882, it was enacted, chapter 363, Laws of 1882, that the taxes levied and confirmed, or attempted to be levied and confirmed since 1861 on lands in that city should not be invalidated by the failure of the assessors to verify the corrected assessment rolls, as they were required to do by § 31, title 4 of chapter 384 of the Laws of 1854, as amended by § 21 of chapter 63 of the Laws of 1862, and all such taxes were declared valid and effectual in law notwithstanding the failure of thé assessors to so verify the rolls.

In all of the statutes passed before June 27, 1882, the validity of the taxes in arrear is assumed, but the act last referred to, passed eight weeks after the decision of Brevoort's case, recognizes their invalidity and the ineffectiveness of chapter 572, Laws of 1880, and of chapter 443, Laws of 1881, as amended by chapter 348, Laws of 1882, and sought to validate the taxes in arrear and make them a lien to the amount of the original assessment, with interest thereon at six per cent, per annum from the date of their original confirmation by the supervisors, if paid before December 1, 1882, but if not then paid, with interest at nine per cent, per annum from the date of such original confirmation. The counsel for both parties concede the constitutionality of this statute. People v. Mitchell, 35 N. Y., 551; Williams v. Town of Duanesburgh, 66 id., 129; Town of Duanesburgh v. Jenkins, 57 id., 177 ; Horton v. Town of Thompson, 71 id., 513 ; Thompson v. Perrine, 103 U. S., 806.

November 29, 1882, the taxes on this lot exceeding sixty per centum of its assessed valuation in 1881, Anna Dickinson, its then owner, paid to the registrar of arrears $6,300 in satisfaction of all taxes assessed on this lot prior to June 1, 1881. The owner in paying, and the registrar in receiving this sum, evidently acted on the theory that the taxes in arrear, which were validated by the act of June 27, 1882, could be extinguished by the payment of an amount equal to sixty per cent, of the assessed valuation of 1881, pursuant to the statute of June 1, 1881, as amended by the act of June 15, 1882.

It is alleged, and for the purpose of the trial admitted, that this sum was paid and received in full payment of all taxes assessed prior to June 1, 1881. This being so, the board of assessors could not, -without having the settlement vacated, or the money restored to the owner, legally fix, adjust and determine that there should be charged against the land any sum on account of taxes assessed prior to June 1, 1881. This act authorized the board of assessors to fix, adjust and determine as to each parcel of land how much ought to be paid for taxes in arrear which bad been assessed before July 1, 1882, including those for which sales had been made, which sales were for any reason invalid. The act further provides that in case the tax as readjusted by the board should remain unpaid for one year, the land should be sold in the manner prescribed by the act. April 22, 1885, the board of assessors equalized the tax of 1870 at $493, and the same not being paid, the registrar of arrears, on the 16th of June, 1886, sold the lot, pursuant to the last mentioned act, to the defendant in this action for $9,000.

It appears by the record that in 1872 this land was sold to pay the tax of 1870, and sufficient was realized to satisfy it; and though this sale was void, it nowhere appears that the city has restored the money to the purchaser, or to his assignee, or that it has been called upon to do so. It further appears that in November, 1882, the then owner (the plaintiff’s immediate grantor), paid to the registrar of arrears of the city of Brooklyn $6,300 in full for-all unpaid taxes assessed prior to June 1, 1881, which is still retained by the city. On a trial the facts may not turn out to be as alleged, but this court must assume the truth of the record.

Section 1 of chap. 114 of the Laws of 1883, provides:

“ Sec. 1. The board of assessors of the city of Brooklyn shall have power and jurisdiction, and they are hereby directed and required in all cases where any tax, assessment or water rate levied or imposed, or attempted to be levied or imposed, on any land in said city prior to the 1st day of July, 1882, remains unpaid and in arrears, except as hereinafter otherwise provided, to examine into and fix, adjust and determine as to each parcel of land how much of said arrearages ought, in the way of tax, assessment and water rate, in fairness and justice, now presently to be laid, assessed and charged against and actually collected from, said land,” etc.

An unpaid tax assessed on a lot prior to July 1, 1882, is the essential fact which must exist to confer jurisdiction on the board of assessors to assess a tax on that lot under this act. The determination by the board that the jurisdictional fact did exist is not conclusive, and does not establish jurisdiction if the fact did not exist. Matter of New York Catholic Protectory, 77 N. Y., 342. If it be true that the tax levied in 1870, on account of which the assessment was made by the board of assessors in April, 1885, under this act, had been before paid and extinguished, the board acted without jurisdiction, their proceedings were void, and the sale to the defendant, made June 16, 1886, was void, and vested in him no title to, interest in or lien upon the lot.

When an assessment is assumed to be made by officers without jurisdiction, and the tax is collected from the owner of the realty assessed, he may maintain an action to recover the amount paid from the city receiving it. Jex v. Mayor, etc., New York, 103 N. Y., 536; 3 N. Y. State Rep., 657.

If the sum which the plaintiff was compelled to pay to the registrar had been retained by the city and not paid over to the defendant, as required by the act, an action could have been maintained by the plaintiff against the city for its recovery.

Can this action to recover the $1,626.07, an action for money had and received, be maintained ? To answer this question it is well to first determine whether the payment was voluntarily or compulsorily made, under the rules of law. It is provided by the statute under which the sale was made, § 4, that the purchaser, upon receiving his certificate, shall give the owner notice -of his purchase, and unless the land is redeemed within one year after the date of such notice the purchaser shall acquire the fee simple of the land and receive a deed therefor, which shall be presumptive evidence of his title.

The defendant notified the plaintiff of his purchase, and that unless the land was redeemed within a year he would claim a conveyance and be vested with the fee. At this time the plaintiff was under a contract to convey the lot to a purchaser, and to enable him to tender .to his purchaser a satisfactory title, he paid the amount to the registrar of arrears for the use of the defendant, protesting at the time that he was not liable to the city, or to the defendant. This statute provides, § 5, that redemption shall be effected “by paying to the registrar of arrears for the use of the purchaser or his assigns,” the required sum.

When a collector of taxes holds a tax warrant, valid on its face, by virtue of which he ■ threatens to sell the land against which the tax is assessed if it is not paid, the payment of the tax by the land owner is not a voluntary one. Bruecher v. Village of Port Chester, 101 N. Y., 240. If such a payment is not a voluntary one, for a stronger reason, a payment made at a subsequent stage of the proceedings after sale, when the loss of his land is much more imminent, is a compulsory one.

It is provided by this statute, § 4, that in case the sale shall prove to be invalid, the city shall refund the money paid for the land, with interest at the rate of four per cent per annum from the date of sale. In Remsen v. Wheeler, 105 N. Y., 573, 8 N. Y. State Rep., 202, a payment was made to the registrar of arrears of this city under chapter 114, Laws of 1883, to redeem lands which had been sold for taxes pursuant to-mn» statute, to a third person. A portion of the sum, $814.85, was paid to redeem land sold for water rates which had been assessed under a statute which was held to be unconstitutional. In an action brought against the city and the purchaser to restrain the city from paying over this sum to the purchaser, it was held that the city was the mere depositary of the money and might be deemed to be the agent of both parties in reference to it (580), and that the payment was not a voluntary one, as was held below, and the judgment was reversed.

The fact that the tax of 1870 had been paid is not disclosed by any of the proceedings which resulted in the certificate, and would have ultimately culminated in a conveyance. Payment could only be established by evidence outside of the record.

The complaint states facts sufficient to constitute a cause of action, and the court erred in dismissing it.

The judgment should be reversed and a new trial granted, with costs to abide the event

All concur.  