
    Elizabeth Betz, Respondent, v. The City of New York, Appellant.
    Second Department,
    April 19, 1907.
    Tax — money had and receivéd—when payment of void tax recoverable.
    Taxes paid on lands which were severed from the borough of Queens by chapter 379 of the Laws of 1899, but which by mistake were assesse 1 by the city, are recoverable, being paid under a mutual mistake of fact. Such payment is not voluntary in the legal sense, for the assessment was not void on its face and was not known to be void by the taxpayer.
    Hooker and Miller, JJ., dissented, with opinion.
    Appeal by the defendant, The .City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 17th day of July, 1905, upon the decision of the court rendered after a trial at the Nassau Trial Term without á jury.
    
      Curtis A. Peters [George 8. Coleman and William B. Ellison. with him on the brief], for the appellant. ,
    
      Michael C. Gross, for the respondent.
   Gaynor, J.:

By chapter 379 of the Laws of 1899, which went into effect April 21, 1899, a small part of the territory of the Borough of Queens, City of New York, was detached from the city and made a part of the adjoining Town of Hempstead in the County of Nassau. Nevertheless, in levying the annual tax of the city for that year in the following August it was included by mistake. On October 2, 1899, the plaintiff’s agent, paid the amount thus: set against her property to the receiver of taxes of the city. Being in doubt whether he had to pay taxes on the property in the city of in the Town of Hempstead — i. e., whether the property was within the limits of the former or of the latter — he went to the office of the said receiver in the Borough of Queens and inquired. ' The person •in charge informed him that they were payable to the city, and made out and gave him a bill therefor on which the land was described by lot, block and ward numbers as in the Borough of Queens. This was a distinct representation that the land was in the city. He paid the bill relying upon its accuracy.

The payment was made under a mutual mistake of fact. The mistake originated with the city’s officials. They included the land in the city’s tax books as a part of the city’s territory and extended a tax against it, all by mistake. The plaintiff’s agent united in their mistake, being encouraged and confirmed in it by the statement to him at the tax receiver’s office and by the tax bill, and paid the tax. Bor the city to keep the amount paid is wholly unjustifiable from any moral standpoint. An individual who should try to do the like would be deemed a dishonest man.

The rule stated .in numerous decisions, that payment without coercion of a tax or assessment (1) which is void on its face, but not known by the payor to be void, or (2) of a tax or assessment which is void, but not void on its face, with knowledge by the payor of facts dehors which make it void, is not recoverable back, has no application to the present case. Such payments are. technically called voluntary payments. The payment in this case does not come under that head at all. It was voluntary in the large sense, but is not within the legal definition of what are termed voluntary payments. In the case of payment without coercion of a tax or assessment void on its face as matter of law, the conclusive legal presumption that every one knows the law, regardless of whether that' be the truth as matter of fact or not in the particular case, makes the payment a voluntary one, i. e., a payment made with knowledge that the tax or assessment is void. In the case of like payment of a tax or assessment not void on its. face, knowledge at the time by the payor of facts dehors which make it. void, also makes the payment a voluntary one, i. e., a payment made with knowledge that the tax or assessment is void. In each case the knowledge that the tax or assessment is void is the basis on which the payment is declared to be a voluntary one.' But where the facts dehors which make it.void are not known to the payor, such basis does not exist. ■ There the payment is not voluntary, for it can be sueli only when made with knowledge, either presumed or actual, that the levy is void. Instead of being made in the present case with knowledge of the fact that the tax was void, it was made and received under a mutual mistake of a fact on which the validity of the tax depended, and money so paid is always' recoverable back (Mowatt v. Wright, 1 Wend. 355 ; Pitcher v. Turin Plank Road Co., 10 Barb. 436; Thompson v. Otis, 42 id. 461; Kingston Bank v. Eltinge, 40 N. Y. 391; Vanderbeck v. City of Rochester, 122 id. 285 ; Davis v. Kling, 77 Hun, 598)

The judgment should be affirmed.

Hirschberg, P.. J., and Jenks, J., concurred ; Hooker, J.', read for reversal, with whom Miller, J., concurred.

Hooker, J.

..(dissénting):

The plaintiff has recovered of the. defendant, the-City of New York, judgment for a. sum of. money which she paid as taxes to it on October 2, 1899. The property of the plaintiff, which was apparently subject to this tax, became a part of the city of New York on the-1st day of January, 1898;. but on the 21st day of April,

1899, an act of the Legislature took effect, which removed this property from within the city of New York, and thereafter it became part of the county of Nassau. (See Laws of 1891, chap.

318, §§ 1, 1611; Laws of 1899, chap. 319.) From and after the second Monday of January, 1899, the tax commissioners of the city took steps which, on the 8th day of August, 1899, resulted in a levy of the tax, which the plaintiff paid several months after the separation of her property from the city.

The plaintiff was not called as' a witness; the only witness who testified for her was her agent, who stated that after he heard- that the taxes which had been levied were to be paid to' the city of New York, lie -went to the tax office in Long Island City and there made inquiry; that he was there informed that the taxes in question were to .be paid to this defendant, and he reported what he had learned to' the plaintiff. He then testified: “ She (the plaintiff) wanted to save some interest; the object of paying this at once was to save interest, to save the property being sold; it was paid on the first day the taxes were payable.” This is the only evidence as to why or the circumstances under which the tax was paid.

It is conceded, and is' doubtless the fact, that the levy of the tax in question was without authority of law. But there is no finding, and none could well have been made, that there was mistake of fact on the part of the plaintiff in the payment. The mistake, if any, was one purely of law. ■ But money may not be recovered. back ■ when .paid under such mistake. “ It is settled at. law, and the rule has been followed in equity, that money paid under a mistake of law with respect to the liability to make payment, or with full knowledge, or with-means of obtaining knowledge of all the eircum- , - stances, cannot be recovered back.” (See Newburgh Sav. Bank v. Town of Woodbury, 173 N. Y. 55, 60.)

The learned trial court, who heard tins casé without a jury, found that, the payment was “ involuntary,” and the respondent seeks to ■ uphold the judgment on the theory that the payment w.as made under coercion by law; The distinction between coercion in fact and' coercion by law, in cases of this character, is drawn by the court, per Folgee, J., in.Peyser v. Mayor (70 N. Y. 497), where ■ this language is iised. (p.-5Ól) : I have spoken of coercion in fact and coercion by law. By the first I mean that duress of person or goods, where present liberty of person or immediate possession of goods is so needful and desirable, as that an action or proceedings at law to recover them will not at all answer the pressing purpose. Duress of person is exemplified in Forshay v. Ferguson (5 Hill, 154); Eadie v. Slimmon (26 N. Y. 9). The cases of Maxwell v. Newbold (18 How. [U. S.] 511), and Harmony v. Bingham (12 N. Y. 99), illustrate what is-duress of goods. It may be well to say that there can be no pretense in this case of a coercion in fact. There was no taking or threat of taking goods. The oral protest was of no. import, save to show that there was not an assent to the proceedings. (Flower v. Lance, 59 N. Y. 603, 610.) Coercion, by law is where a court, having .jurisdiction of the person and the subject-matter, lias rendered a judgment which is Collectable in due course.” (See Wilcox v. Mayor of New York, 21 J. & S. 436.)

My conclusion is that, so far as the record before-us presents the facts, the payment of the tax, in question was voluntary, and rnay ■ not be recovered • back from the city. The judgment should, therefore, be reversed and a hew trial granted, costs to abide the event. .

Miller, J., concurred.

Judgment affirmed, with costs.  