
    Hannah P. Vanderbeck, App’lt, v. The City of Rochester, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October, 1887.)
    
    1. Pleadings—Supplementary answer—Allowance oe discretionary-
    The granting of an order permitting the service of a supplementary answer is discretionary with the court.
    2. Dower—Widow has right to, free from arrears of taxes,
    A widow is entitled to have her dower assigned to her clear of the arrears of taxes and assessments, which are payable out of her husband’s personal estate.
    3. Voluntary payment—What is.
    If she pay assessments resting on the land in which she has a right of dower without the immediate necessity of so doing in order to protect her property, the payment is a voluntary one and cannot he recovered. The character of the payment is not changed by the fact that it was made by her at that time to escape the addition of interest for delay.
    4. Highways—Laws 1861, chap. 311—Does not apply to city streets.
    Laws 1861, chap. 811, declares that every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall not he opened and worked within the like period, shall cease to he a road for any purposes whatever. Held, that this statute had no application to streets laid out in the cities of the state.
    Appeal by plaintiff from a judgment entered in Monroe county in favor of defendant and against plaintiff upon the report o£ a referee dismissing plaintiff’s complaint upon the merits with costs; and also from an order granted at special term permitting the defendant to make and serve a supplemental answer. The common council of the city of Rochester, pursuant to the provisions of its charter, on the 18th of July, 1876, after hearing all interested parties appearing, adopted and passed an ordinance to open a boulevard in that city, the opening of which required the taking of land belonging to divers persons, and including certain land of Andrew J. Vanderbeck.
    Commissioners were appointed who awarded damages and compensation to the various owners, and among others to Mr. Vanderbeck for his lands taken for the boulevard, the sum of $1,010.20. The report of the commissioners was duly confirmed, and pursuant to the provisions of the charter. an assessment was made upon the lands of Mr. Vanderbeck,. fronting upon the boulevard for the benefit to be derived from such improvement, the sum of $1,415.13. The amount assessed by the commissioners upon all the lands benefitted by the improvement was not sufficient to pay, and did not pay more than the amount awarded for the lands thus taken and the expenses of the commissioners.
    Nothing has ever been collected or paid towards the expense of working the boulevard, or for preparing it for travel. Mr. Vanderbeck died on the 12-th day of March, 1878, intestate, leaving surviving a widow, the plaintiff, and two infant children. These lands assessed as aforesaid descended to his two heirs-at-law, the plaintiff having a dower interest therein. The plaintiff, was_, before the commencement of the action, appointed guardian of the children. She was notified in May, 1879, of the assessment, and on the 29th of July, 1879, paid it. It then amounted with interest, after deducting $1,010.20 for damages, to $468.72. Plaintiff paid this sum from her personal funds for the avowed purpose of relieving her dower interest in the lands from the lien of the assessment. The defendant duly paid out all the money collected and realized from the assessment to the owners of the lands taken, for their damages awarded by the commissioners, and the expenses of the proceeding.
    Before the commencement of this action plaintiff demanded of the defendant repayment of the money paid by her with interest. The land taken for the boulevard was vacant land. Although more than six years had elapsed after the condemnation proceedings were finished, before the commencement of this action no proceeding had been taken looking to the opening and working of the boulevard. On the 9th of November, 1886, and after the commencement of this action the common council adopted an ordinance for the staking out, turnpiking and guttering this boulevard. After this action of the common council, an order was made by the Monroe special term permitting the defendant to make and serve a supplemental answer setting up these proceedings on the part of the common council, and the answer was accordingly amended. Upon the foregoing facts, the referee found that plaintiff had failed to establish any cause of action under the complaint against the defendant, and that defendant was entitled to judgment, dismissing the complaint with costs.
    
      J. A. Barhite and J. L. Lucky, for app’lt; Henry J. Sullivan and Ivan Powers, for resp’t.
   Lewis, J.

The order permitting the service of the supplemental answer was discretionary. Code of Civ. Pro., § 544. The discretion was properly exercised in this case. Spears v. The Mayor of New York, 72 N. Y., 442.

From the view we have taken of this case, however, the service of the supplemental answer did not prejudice the plaintiff’s case. The appellant paid the money she now seeks to recover to release the land in which she had simply a dower interest from the assessment. No process had been issued for its collection. Notice had been given her in May, 1879, through the mail, that the assessment was due, and that unless it was paid five per cent would be added for collection, and in the July following she, being informed by the respondent’s treasurer that if the assessment was not paid interest would accumulate upon it, paid the amount due. Payment was made out of her own funds. She did not pay this money under duress of person or property. The appellant having simply a dower interest in the land assessed, the respondent had no personal claim against her. So there could be no duress of her person or property. Until the assignment of her dower she had no estate in the lands, but merely a right of action. Nothing had been done by the respondent looking to the sale of lands in which she had a dower interest. Her dower interest was not in peril provided her husband left sufficient personal property to pay the assessment; and she failed to prove upon the trial that there was not sufficient personal property of the estate to pay the assessment.

A widow is entitled to have her dower assigned to her clear of the arrears of taxes and assessments, which are payable out of her husbsnd’s personal estate. Harrison v. Peck, 56 Barb., 251. About two years had passed after the assessment was made. She was aware that nothing had been then done to open and work the boulevard. No process had been, or could be, issued to collect the money of her personally. Yet she paid the money. The payment must be held to have been voluntary and she cannot maintain an action to recoven “'Where there is no mistake or fraud a voluntary payment cannot be recovered-on the mere ground that the one party was under no legal obligation to pay and the other had no right to receive. Where a party would recover back taxes which he is under no legal obligation to pay, the payment must be compulsory.” Dillon on Municipal Corporations, § 946. “Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary and cannot be recovered back.” Dillon on Municipal Corporations, § 947.

This doctrine would prevent the plaintiff maintaining an action to recover the money immediately after its payment; but it is claimed that the respondent, having neglected to open the boulevard for public use for more than six years after the proceedings were instituted to lay it out, it ceased to be a public street; and plaintiff relies to maintain this position upon chapter 311 of the Laws of 1861. This act declares that “every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall not be opened and worked within the like period, shall cease to be a road for any purpose whatever.”

This statute does not apply to streets laid out in the cities of the state, and has been so held in the Matter of Lexington Avenue (29 Hun, 305, affirmed in 92 N. Y., 629). The public simply obtains the right of way to lands taken for highways in the towns of the state, the fee remaining in the owner. It is very proper, in case of these highways, that the public should proceed within a reasonable time to open and work them and prepare them for the public to use. Having only the right of way, they should be held to exercise it within a reasonable time or be deemed to have abandoned it; so that the owner of the fee, if the lands are not to be used for a highway, may use the land as before proceedings were instituted to lay out the highway. The statute of 1861 fixes six years as a reasonable time; but in the case under consideration the respondent purchased and paid for, and owns, the land taken for the boulevard, in fee.

If the respondent should be held to have lost its interest in the premises by laches, the former owners cannot be said to have an equitable claim upon the lands so taken, except that which they have in common with the public.

Under the respondent’s charter its council are given power to lay out such streets in the city as, in their opinion, the public interests require. In the exercise of this power, cases may arise where it is proper to acquire land for a boulevard in advance of the time when the public interests require "that it should be opened and worked.

This boulevard appears to have been laid out, in part at least, through fanning land in the city. A section of the respondent’s charter provides for the laying out of streets by the common council. Another section says : “The common council shall not open or work any street or alley, or make- or ordain any work or improvement the expense whereof is to be defrayed, in whole or in part, by local assessment, except upon the petition of a majority of the owners of property to be assessed therefor, unless three-fourths of all the members elected to said common council vote therefor after allegations have been heard.” Contemplating that a street, may be laid out and then, at some future time, opened and worked.

In this case only such sum as was necessary to lay out. and pay for the land of the boulevard was assessed upon the property benefited. The money paid by the appellant, was appropriated for that purpose. The owners of the property, which would be assessed for the expense of opening and working this boulevard, neglected to petition the council to proceed with the improvement, as they were authorized to do by the section of the charter above quoted. Had they presented such a petition, a majority of the council could have ordered the boulevard opened. Without the petition it required a vote of three-fourths of the members to direct the work to be done.. We may assume that the laying out and improvement of the boulevard would benefit the property in winch appellant had an interest. If she could maintain this action and recover back the money paid by her, her property would receive the benefits of the improvement and escape paying for them, at least to' the amount of money recovered. The owners of the property, which would be assessed for the expense of opening and working the boulevard, having failed to petition the council to order the work, should be held to have acquiesced in the propriety of the delay in opening the boulevard. If the. public interests demanded the immediate opening of the boulevard, and the council, after having been properly petitioned, had failed to act, they might have been set in motion by mandamus.

The case of Bradford v. The City of Chicago (25 Ill., 411), relied upon by appellant, is not in point. In that case the assessment was void. The city, notwithstanding, compelled its payment and neglected for four years to institute new proceedings and make a valid assessment. The court, therefore, decided that the pity must be held to have abandoned the proceedings, and was hable in an action to recover the-assessment paid. In the case at bar the assessment was. valid, the money collected was used in purchasing land for the boulevard and the expenses of the proceedings taken to lay it out. Proceedings having now been instituted to complete the improvement, plaintiff’s land will soon receive the benefits arising from the opening of the boulevard.

If the view we have taken of this appeal is correct, none of the exceptions of the appellant taken to the admission of evidence can avail her.

The judgment and order appealed from should be affirmed, with costs.

Smith, P. J., Barker and Bradley, JJ., concur.  