
    Valentine Diefenthaler, App’lt, v. The Mayor, etc., of New York City, Resp’t. Julia Friend, App’lt, v. The Mayor, etc., of New York City, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Taxes and assessments—When money paid on void assessment maybe EECOVEBED BACK.
    Where lands are covered by an assessment which appears to be valid on its face, and to be an apparent lien upon such lands, but which, assessment is in fact, by reason of matters debtors the record, illegal and void even in part, if the owner has involuntarily paid the assessment in ignorance of such facts,he may on discovery thereof, maintain an action to set aside the legal operation of said assessment, and to recover back a proportional part of the money so paid.
    2. Same—Assessment need not be set aside beeoke action commenced.
    An assessment valid on its face, but in reality void for want of jurisdiction on the part of the assessor to make, or if the owner of the property has paid the same involuntarily, he may maintain an action to recover the amount thus paid without first setting aside the assessment.
    3. Same—Statute of limitations—When six years bars action.
    Where the assessment is invalid, not from any want of jurisdiction existing in the person who levied it, but from some other cause, the six years statute of limitations is applicable where the plaintiff commences his action to set aside the assessment and to recover back the money paid by reason of it.
    4. Same—Nature of action.
    The real substantial governing cause of an action in a case like the one last mentioned, lies in the fact that the defendant has money in its hands, which ex aequo et bono it ought to pay back to the plaintiff, and the action is essentially one to recover money back which the defendant has received from the plaintiff, but has no legal right to withhold from him. The setting aside of the assessment in such a case, is a mere incident to the legal cause of action to recover back the money paid, and being so, the legal limitation of six years, in which to commence the action, applies.
    5. Same—Court of equity cannot entertain action to set aside assessment as cloud on title.
    A court of equity cannot entertain an action to set aside an assessment as-a cloud upon the title after the assessment has been paid, if that be the only relief sought.
    6. Same—When legal limitation a bar to equity action.
    Although an equitable action may have for its object the accomplishment of the same end as one at law, and being based upon the same cause of action, yet where the remedy sought in equity is a mere incident to the main obligation owing by the defendant, and which is a wholly legal one, the legal limitation applies because the cause of action is substantially a legal one.
    7. Same—Effect of Laws 1880, chap. 550—To wbat applicable.
    Laws of 1880, chapter 550, which provides for the appointment of commissioners to revise or modify certain assessments made for improvements, applies only to cases of assessments where a lien exists at the time of the commencemet of the proceedings. The whole scope of the act shows that its purpose was to modify,' vacate and reduce assessments then existing, in accordance with what the commissioners therein appointed should regard to be substantially just. Their jurisdiction and authority under said act ceased npon the 30th day of September, 1881. ,
    8. Same — Who entitled to benefit of relief granted by Laws’ 1880, chap. 550, §10.
    The plaintiffs simply alleged that upon the petition of some third' party an order of the supreme court was made on the 10th day of January, 1884, by which the assessment upon the lots of the petitioner in that proceeding was reduced forty-eight and three-tenths per cent. Held, that the reduction referred to was not a modification or reduction of the assessment made by the commissioners appointed under the act of 1880. That it was only upon such a modification or reduction that anyone who had, prior to the passage of that act, paid an assessment, was entitled to a reduction equal in proportion to that made by the commissioners upon the assessment of any third party for the same local improvement.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment entered at special term upon demurrers, to certain defenses set up by the defendants answer.
    
      Herbert A. Shipman, for app’lt; D. J. Dean, for resp’t.
    
      
       Affirming 14 N. Y. State Rep., 941.
    
    
      
       Affirming 14 N. Y. State Rep., 939.
    
   Peckham, J.

These two actions were brought to recover back a certain proportion of moneys paid by the plaintiffs on assessments levied upon their lands in the city of New York. The facts in the two cases are precisely the same and relate to the recovery of money paid upon assessments prima facie valid, and which created an apparent lien upon the land assessed, and where the facts rendering a portion of the assessment invalid were all dehors the record, and the plaintiffs were entirely ignorant of them and could not have obtained knowledge in regard to them by an inspection of the record or the papers attached; nor would they have appeared in the proceedings of a purchaser to enforce the lien of the same. The answer in each case, among other things, sets up as a sixth defense that the assessments had not been vacated or reduced pursuant to any of the provisions of chapter 550 of the Laws of 1880, or the laws amendatory thereof, and that the action was not commenced within a year after the confirmation of the assessment..

The defendants further answering, and as a seventh and further defense, stated that the cause of action alleged in the complaint accrued more than six years before the commencement of the action, exclusive of any time during which the commencement of the action had been stayed, and that the right to maintain the action was complete more than six years and thirty days before its commencement.

The plaintiff demurred to the sixth and seventh defenses above-stated. The special term sustained the demur to the sixth and overruled that to the seventh defense. Both parties appealed to the general term from the judgment of the special term where such judgment was affirmed, and both parties appeal here.

We think the courts below were right in their construction of the statute of 1880, and that it applies only to cases of assessments where a lien exists at the time of the commencement of the proceedings. The whole scope of the act shows that its purpose was to modify, vacate or reduce assessments then existing, in accordance with what the commissioners therein appointed should regard to be substantial justice. The remedy given to an individual who had paid money under an assessment for any reason illegal or irregular by the tenth section of the act of 1880 does not include such a sale as the present. The plaintiffs simply allege that upon the petition of some third party an order of the supreme court was made on the 10th of January, 1884, by which the assessment upon the lots of the petitioner in that proceeding was reduced forty-eight and three-tenths per cent. That was not a modification or reduction of the assessment made by the commissioners appointed under the act of 1880, and it was only upon such a modification or reduction that any one who had, prior to the passage of that act, paid an assessment was entitled to a reduction equal in proportion to that made by the commissioners upon the assessment of any third party for the same local improvement.

The fifth section of the act provides that the commissioners should make their decision in writing on or before the 30th day of September, 1881, on which day their jurisdiction and authority under the act were to cease. In other words the act provided for a reduction or vacation of assessments then existing.

There being no allegation that any reduction had been made by the commissioners in regard to this assessment, and it appearing that the order setting aside the assessment, so far as regards the third party, was made in January, 1884, more than two years after the commissioners had ceased to have any authority under the act, it is conclusive evidence that no such order was made by them. A reading of the whole act shows that it was of the same nature as that of 1858, referred to in the decision of this court in Jex v. The Mayor, 103 N. Y., 536; 3 N. Y. State Rep., 657.

Upon the defendant’s appeal from the order and judgment sustaining the plaintiffs’ demurrer they should be affirmed.

The plaintiffs appeal from the order and judgment of the general term overruling their demurrer to the defense of the six years statute of limitations.

It must now be considered as settled by this court that where lands are covered by an assessment which appears to be valid on its face and to be an apparent lien upon such lands, but which assessment is in fact by reason of matters dehors the record illegal and void, even in part, if the owner has involuntarily paid the assessment in ignorance of such facts he may, on discovery thereof, maintain an action to set aside the illegal portion of such assessment and to recover back a proportional part of the money so paid. Strusburgh v. The Mayor, 87 N. Y., 452.

It has also been held that an assessment valid on its face, but in reality void for want of jurisdiction on the part of the assessors to make it, if the owner of the property has paid the same involuntarily, he may maintain an action to recover back the amount thus paid, without first setting aside the assessment. Bruecher v. The Village of Port Chester, 101 N. Y., 240; Jex v. The Mayor, 103 id., 536; 3 N. Y. State Rep., 657.

In regard to those cases where the assessment is invalid, not from any want of jurisdiction existing in the persons who levied it, but from some other cause, the question of what statute of limitations is applicable where the plaintiff commences his action to set aside the assessment and to-recover back the moneys paid by reason of it, has not been settled.

The plaintiffs claim that at least the ten years, if not the-twenty years, statute applies in such a case. They say it is an application to a court of equity to set aside the assessment, and that such assessment must be set aside before-they can recover back the money paid by reason of it. This reasoning, they say, brings it within the ten years’ limitation, but they go further and say the twenty years’ statute applies because an assessment is like a judgment or mortgage upon property, the lien of which lasts as long as-that of a mortgage, and that there is no presumption of payment inside of twenty years, and that they have the same time in which to commence their action that the city would have to compel payment of the assessment by enforcing the lien thereof.

We think there is ho even plausible ground for the latter-claim. In regard to the other question we think the six years’ statute applies.

In the first place the assessment having been paid by the plaintiffs there is no-lien remaining upon their lands, and no cloud upon their title. A court of equity cannot entertain, as I think, an action to set aside an assessment as a cloud upon title after the assessment has been paid, if that be the only relief sought. The answer would be, there is no cloud because there is no assessment remaining, unpaid. The real, substantial, governing cause of action in a case like this lies in the fact that the defendant has money in its hands which, ex aequo et bono, it ought to pay back to the plaintiffs, and the action is essentially one to recover back money which the defendant has received from the plaintiffs, but has no legal right to withhold from them.

So long as a party can unite in the same action his right to have an assessment, which is prima facie legal, declared invalid and his right to recover back the money paid thereon, the whole forming one substantial cause of action, there is no color to the claim that the real cause of action lies in the necessity of a judgment vacating the assessment.

The setting aside of the assessment in such a case as this, is, on the contrary, a mere incident to the legal cause of action to recover back the money paid; and that being so, the legal limitation of six years in which to commence the action should be applied.

In Borst v. Corey (15 N. Y., 505), it was held that an action to enforce an equitable lien for the purchase-money of land was barred by the lapse of six years after the debt had accrued. In that case the land had been sold to the defendant, and his debt to the plaintiff for the purchase-money became due immediately upon the conveyance of the land to him. More than six years after that time the plaintiff commenced an action to enforce his equitable lien upon the land for the payment of the purchase-price thereof. At that time the relief sought — that is, the sale of the premises under the equitable lien thereon for the purchase-price — could only have been awarded by a court of equity. But for six years after the conveyance the plaintiff could have commenced his common law action against the defendant to recover the debt, that is, the purchase-money, which became due immediately upon the conveyance being made. The court held that the lien upon the land for the payment of the purchase-money was merely an incident to and must stand or fall with the debt; and the action to recover the debt being barred by the legal statute of limitations, the action in equity could not be sustained, although decided upon the provision of the statute making the legal limitation applicable to a suit'in equity (2 R. S., 301, § 49); yet I refer to that case for the purpose of showing that, although an equitable action may have for its object the accomplishment of the same end as one at law, and be based upon the same cause of action, yet where the remedy sought in equity is a mere incident to the main obligation owing by the_ defendant, and which is a wholly legal one, the legal limitation applies, because the cause of action is substantially a legal one.

The plaintiffs cite many cases to show that equity takes jurisdiction of an action to set aside an assessment, even though it be absolutely void for want of jurisdiction, providing such lack of jurisdiction does not appear, and would not appear, in any proceedings taken under it; and they •claim that this is substantially an action of that nature.

Undoubtedly, even in cases where there is no jurisdiction on the part of the assessors to make the assessments in question, if that fact do not appear, courts of equity, where the assessment has not been paid, do take cognizance of such cases. Where, however, the assessment has been paid, I do not think a court of equity would take or would have jurisdiction in an action brought simply for the purpose of having such an assessment set aside ; and that for the reasons already stated.

We are of opinion, therefore, that the plaintiff’ s demurrer to the defendant’s answer setting up the six years statute of limitations was properly overruled, and the order and judgement of the general term upon both appeals should be affirmed, without costs to either party as against the other.  