
    Isabel S. Tripler, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Payment—Void assessment.
    On the sale of property by plaintiff an assessment thereon which was in fact void was paid out of the consideration money for the purpose of clearing up the title. No steps had been taken to collect the assessment. In an action to recover back the money so paid. Held, that there was no such coercion as to render the payment involuntary, and that a judgment in favor of plaintiff could not be sustained.
    3. Same—Burden of proof.
    In such an action the burden is upon the plaintiff to show that at the time of payment she was not aware of the facts in respect to the illegality of the assessment.
    Appeal from judgment after trial at circuit and from order denying motion for new trial.
    
      G. L. Sterling, for app’lt; J. A. Peering, for resp’t.
   Van Brunt, P. J.

This is the second time that this case has been to the general term. Upon a previous trial judgment was rendered in favor of the plaintiff and affirmed by the general term upon the authority of Peyser v. Mayor, 70 N. Y., 497. Upon appeal to the court of appeals the judgment was reversed, 125 N. Y., 617; 36 St. Rep., 141, it being claimed that the Peyser case did riot apply, because the opinion proceeded upon the assumption that the party paying was not aware of the facts which rendered the assessment void, and that in this case, as it was then presented, such facts did not appear.

We do not see how the judgment in question can be maintained in view of the expression of opinion that the facts, which were-then before the court, and which are the same in the present record, establish no coercion either in fact or law, and that such coercion must exist in order to make a payment involuntary ; the-definition of the words “ involuntary payment,” as given by the court, being that it implies there is some fact or circumstance-which overcomes the will, and imposes a necessity of payment in, order to escape further ills, and then holds that upon the facts-proven in the case there can be no claim that the payment was. made by any coercion of fact, or coercion in law. Such being the case, the element of involuntary payment was wanting in the case-at bar.

It is to be observed upon examining the charge of the court,, although no exception was taken thereto, that an error in respect to the burden of proof was fallen into, and that it was necessary-for the defendant, in order to escape the repayment of this assessment, to show that the plaintiff did know, as matter of fact, that the assessment was unlawfully levied. Upon the contrary, the; burden is upon the plaintiff to show that she was not aware of the facts in respect to the illegality of the assessment.

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

O’Brien, J., concurs.  