
    John L. Redmond, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    Municipal corporations—Assessments—When payment not voluntary.
    Where the invalidity of an assessment does not appear on its face, and an owner of property pays the same, without knowledge of such invalidity, because compelled to do so in order to obtain a loan on the property, such payment is not a voluntary one, and may be recovered back.
    Appeal from a judgment against the defendants entered after trial at special term. The complaint demands judgment that an assessment for paving Thirty-sixth street, between Seventh and Eighth avenues, confirmed the 2d day of November, 1871, be declared void, and that the plaintiffs recover the money which had previously been paid in satisfaction theroof, to wit., $1,221.35. The payment was made December 15, 1888; a demand for repayment was made two days afterward, and suit was begun January 23, 1890. It appears from the evidence that the plaintiffs were the owners of property on the northeast corner of Eighth avenue and Thirty-sixth street. An assessment for the paving of Thirty-sixth street, between Seventh and Eighth avenues, was imposed upon this property in 1853, and paid in 1854. In 1869 an ordinance was passed for paving Thirty-sixth street, between Seventh and Eighth avenues, with Belgian or trap-block pavement. The street was paved, pursuant to that ordinance, and an assessment for a portion of the expense thereof imposed upon the plaintiffs’ land. This assessment was confirmed in 1871. The plaintiffs, however, did not pay until December, 1888, and almost immediately afterwards brought this suit to recover the amount
    
      George L. Sterling, for app’lt; James A. Deering, for resp’t.
   Ingraham, J.

It is, I think, clear that the ordinance of the common council providing for the work and assessment in question, and the assessment imposed under the provisions thereof, was void, under the rule adopted by the court of appeals in Re Burmeister, 76 N. Y., 177, and that such invalidity did not appear upon the face of of the assessment list. The defendant could not, therefore, have enforced the assessment.

It is also clear that if the plaintiff had been compelled to pay the assessment, and did pay it without knowledge of its illegality, plaintiff would be entitled to recover back the amount so paid in this action. Jex v. The Mayor, etc., 103 N. Y., 536; 3 N. Y. State Rep., 657; Tripler v. The Mayor, 53 Hun, 36; 24 N. Y. State Rep., 244.

It is claimed on behalf of the defendant that the payment was voluntary, and for that reason could not be recovered back. I am, however, unable to find in this case any facts that would make the payment of the assessment a voluntary one. The person who paid the assessment expressly testified that she had no knowledge that the assessment was void, and that its payment was necessary because of the refusal of a trust company to make a loan upon the property until the assessment was paid. There is nothing to charge either the plaintiffs or their predecessors in title with knowledge of the facts that rendered the assessment void. The payment was not, therefore, a voluntary one, and the plaintiff was entitled to recover. Tripler v. The Mayor, etc., 53 Hun, 36 ; 24 N. Y. State Rep., 244.

The judgment should be affirmed, with costs.

Freedman, J., concurs.  