
    Jerusha Vaughan, Resp’t, v. The Village of Port Chester, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    Assessment illegal—Payment op under protest is not voluntary— Sum paid may be recovered.
    The defendant in excess of its corporate powers imposed an assessment upon the lands of the plaintiff. While this was an apparent existing lien on the land the plaintiff was bound by contract to convey to another a title thereto free and clear from all encumbrances. Under these circumstances, and protesting against the illegality of the assessment, the plaintiff paid the sum assessed to the defendant. Held, that the payment was not a voluntary one and that the sum so paid might be recovered by action.
    
      Appeal from a judgment of the special term of Westchester county overruling a demurrer to the complaint in this action.
    
      Wilson Brown, Jr., for resp’t; Mannix Dillon, for app’lt.
   Barnard, P. J.

The money in question was obtained by what is legally known as duress of goods.

The village had worked and graded two of the avenues ©f the village, Haseco and Irving avenues. The corporate power to impose an assessment on the plaintiff’s lands therefore was exceeded, and the assessment attempted to he imposed was illegal and void. The assessment remained an apparent lien on the land, and under this condition of the facts the plaintiff agreed to sell her land free of incumbrance. The purchaser refused to take title and the plaintiff was compelled by the defendant to pay the assessment or to pay damages for breach of covenant to the purchaser. The assessment was paid by the plaintiff to the defendant and received under the plaintiff’s protest, that the tax Was illegal and void and that she would sue to recover the same. The payment was not a voluntary one. “ To constitute a voluntary payment the party paying must have the freedom of exercising his will when he acts under any species of compulsion the payment is not voluntary. If a party has in his possession goods or property belonging to another and refuses to deliver such property to that other unless the latter pays him a sum of monéy which he has no right to receive, and in order to obtain possession of his property he pays that sum, that the money so paid is a payment made by compulsion and may be recovered back.” Scholey v. Mumford, 60 N. Y., 496.

This principle covers the facts in this case. The defendants held a void lien on the plaintiff’s property and used it to obtain, against the plaintiff’s will, the amount thereof or to subject her to a loss of the sale of her property and perhaps to an action upon the covenant for a clear title. Under these circumstances equity will not justify a retention of the money.

Order and judgment affirmed, with costs.

Pratt, J., concurs; Dykman, not sitting.  