
    Margaret C. Smyth, Pl’ff, v. The Mayor, etc., of New York, Deft.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    Municipal Corporations—Assessments—Voluntary Payment.
    Plaintiff brought action to vacate an assessment, and an order was granted therein in 1881, setting the same aside, but the order was not entered until 1889. In the meantime, in proceedings brought by plaintiff, the assessment was reduced, and plaintiff paid the reduced amount in order to procure a loan on the property. Ho proceedings had been taken or threats used on behalf of the city to collect the assessment. Held, that such payment was voluntary and could not be recovered. x
    Application for judgment in an action tried before a jury where the court directed a verdict for defendant subject to the opinion of the court at general term.
    On the 3d day of July, 1875, an assessment was confirmed for the building of sewers in Seventh avenue, between One Hundred and Twenty-first and One Hundred and Thirty-seventh streets. On the 8th day of September, 1880, the plaintiff brought a proceeding in the supreme court for the vacation or reduction of this assessment under chapter 338 of the Laws of 1858, and its amendments. These statutes have been incorporated into the consolidation act as §§ 897 to 914, inclusive. Proof was taken in that proceeding, and a hearing had before the court. The result was that on the 21st day of July, 1881, an order was granted and signed by Mi’. Justice Cullen, vacating the assessment in question on the plaintiff’s lots.
    This order was not entered, however’, until January 25, 1889, but was retained in the possession of the plaintiff’s attorney. On September 8, 1882, the petitioner instituted proceedings before the assessment commission, a tribunal established under chapter 550, of the Laws of 1880, for the granting of such relief as might be just to the property owners who had been aggrieved by assessments for local improvements. The commission heard the case on the merits, and made a certificate on or about the 19th day of October, 1882, reducing the assessment in question sixty-five per cent., and from $1,784.69 to $624.66. Subsequently, and on the 9th day of March, 1883, the plaintiff paid the reduced amount with interest, being forced to do so to procure a loan on the property.
    The present suit is to recover the amount thus paid, with interest and costs, on the theory that the order made in 1881 adjudged the assessment illegal and void, and that the defendants have in their possession money which ex aequo et bona belongs to the plaintiff.
    
      George L. Sterling, for def’t; James A. Peering, for pl’ff.
   Ingraham, J.

We think the payment of the assessment in this case was clearly a voluntary payment. Prior to ihe time of the payment proceedings had been commenced to have the assessment declared void and an order had been signed by one of the justices of the supreme court dated on the 21st of July, 1881, vacating the assessment and directing the municipal officers to cancel and discharge the same and the lien or liens upon the records of their respective offices so far as the same affected plaintiff’s lots.

This order does not appear to have been filed until some time in 1889. The court, however, had decided that the assessment was void and that it should be vacated.

In order to remove the lien of the assessment from the plaintiff’s property, she had to file the order, take a certified copy of it to the proper officers and the lien was discharged. Instead of that she went and paid the assessment. There was no threat on behalf of the city to sell the property and the assessment was paid not on account of any proceedings of any kind taken by the city but for her own purpose.

The case comes directly within the case of Phelps v. The Mayor, etc., 112 N. Y, 216; 20 N. Y. State Rep., 238. It was there stated: “We do not understand that the rule goes further in its authority to permit a recovery back of the moneys paid by a person under a tax or assessment than in a case where, its payment being compelled by the actual or threatened seizure of his person or divestiture of his goods, he asserts by action and successfully maintains its illegality.” Here the assessment had been declared by the court to have been illegal on plaintiff’s petition and an order signed so adjudging. A payment made under such circumstances was not compelled by an action or threatened seizure of his person or divestiture of his goods.

We think, therefore, the defendants are entitled to judgment on the verdict, with costs.

Freedman, J., concurs.  