
    Vaughn v. Village of Port Chester.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    Municipal Corporations—Recovery of Void Assessments.
    In an action against a municipal corporation to recover the amount of a void assessment alleged to have been made under coercion, it appeared that at the time of the payment plaintiff was under contract to sell the land assessed. Defendant refused to accept a deposit of the assessment as indemnity, or to delay the sale until the validity of the assessment could be determined, and ordered the property to be advertised for sale. The receiver of taxes notified plaintiff that her property would be sold unless the assessment was paid. Plaintiff was at the time seriously ill. Held, thát the assessment was not paid voluntarily, and plaintiff was entitled to recover the same.
    Appeal from special term, Westchester county.
    Action by Jerusha Vaughn against the village of Port Chester to recover the amount of a street assessment paid by plaintiff, on the ground that such payment was made involuntarily, and under threats and coercions which amounted to duress, it being conceded that the assessments were illegal and void. There was a judgment for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      Maurice Dillon, for appellant. Wilson Brown, Jr., for respondent.
   Pratt, J.

This is an appeal from a judgment entered upon a trial at special term, which declared certain assessments upon the plaintiff’s property to be illegal andyyoid, and for a return of the money paid, with interest, upon such assessments by the plaintiff, upon the ground that such payment was made involuntarily, and under threats and coercion which amounted to duress. It will be seen, therefore, that the only question in the case is whether the proofs warranted the finding of fact below, “that such payment was against her will, and was not a voluntary payment on her part, and plaintiff was obliged and compelled to pay the same by reason of the coercive action, threats, and statements of the defendant, its officers and agents, to deprive her of her property if she did not pay the said assessments,” it being conceded that the said assessments were illegal and void. At the time of such payment the plaintiff was under a contract to sell her lands upon which such assessments had been levied, and give a good title thereto. The defendant refused to accept a deposit of the amount of the assessment as indemnity, or delay the sale until the validity of the assessment could be determined, and passed a resolution directing its treasurer to advertise her property for sale under a warrant then in the hands of the receiver of taxes of said village. At this time the receiver of taxes had published notice and demanded of plaintiff payment of these assessments, and sent a constable to notify plaintiff that her property would be sold unless said assessments were paid. The plaintiff, at the time of the payment, was prostrated with a serious illness, and was in no state of mind to contend with public officers armed with a warrant valid upon its face, but naturally thought, and had a right to think, they would make their threats good, and deprive her of her property. That the assessment was not paid voluntarily may be inferred from the fact that it was paid under protest, and after various efforts to avoid payment or put off the sale. We think the case may fairly fall within the principles laid- down in the cases of Bowns v. May, 120 N. Y. 357, 24 N. E. Rep. 947, and People v. Carter, 119 N. Y. 557, 23 N. E. Rep. 926. We think, taking into view all the facts and circumstances of the case, that they fully sustain the finding that the assessment was paid under coercion and duress. The facts seem to bring the case within the definition of an involuntary payment as laid down by Dillon on Municipal Corporations, (volume 2, § 943,) to-wit: “The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power possessed or believed to be possessed by the persons exacting or receiving the payment over the person or property of another, from which the latter was no other means or reasonable means of immediate relief except by making payment.” The defendant had the physical power to sell plaintiff’s property, and threatened to do so, and made his authority seem legal and absolute by exhibiting the warrant. It is like the case of threatening to turn off water by city authorities if an illegal license fee is not paid, which has been held to be compulsion. We think the proofs sustain the findings, and that the conclusions of law are the logical result of such findings. Judgment affirmed, with costs.  