
    Tripler v. Mayor, Etc., of the City of New York.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Municipal Corporations—Assessments—Validity—Evidence.
    A letter from the commissioner of public works, accompanying the transmission to the assessors of the assessment list, map, and certificate* of costs, is no part of the record, and is not admissible to show that the assessment is void on its face because the work was done by the day and not by contract.
    Appeal from special term, New York county.
    Action by Isabel S. Tripler against the mayor, etc., of the city of New York, to recover the amount of an illegal assessment paid by her. Plaintiff recovered, and defendant appeals.
    Argued before Van Brhnt, P. J., and Bartlett and Macomber, JJ. Henry R. BeeJtman, Corporation Counsel, (ff. L. Sterling, of counsel,) for appellant. James A. Beering, for respondent.
   Van Brunt, P. J.

This action was. brought to recover the amount paid by the plaintiff to satisfy an assessment imposed upon her property for constructing sewers in the boulevard. Questions arising upon cases of this nature have been so frequently to the court of appeals that it is not at all necessary to discuss the principles which are to govern recoveries in cases of this character. It has been established that where the payment has been voluntary no recovery can be had. Such payment is deemed to be voluntary where it is made in a case in which the assessment is void upon its face, and without compulsion or duress; and that a payment made, as in the case at bar, by a mortgagee, upon making a loan upon the property, out of the moneys of the mortgagor, is not to be deemed a payment under compulsion. The only question then left to be considered is, was the assessment void upon its face? It is conceded by both parties that the assessment was void because the work was done "by day’s labor and not by contract; and the only contention is as to whether such defect appears upon the face of the assessment. It is claimed by the appellant that it does, because of the letter of the commissioner of public works accompanying the transmission of the assessment list, map, and certificate of the cost of the work to the board of assessors for their action. But the difficulty with this position is that such letter formed no part of the assessment record, and was not at all necessary in order to confer jurisdiction upon the assessors to act. All that it was necessary that the commissioner of public works should do was to transmit to the assessors the assessment list, map, and certificate of cost; and all that the commissioner attached to his communication other than this had no validity as a public record, and formed no part of the assessment list. What the commissioner of public works said, therefore, in transmitting this assessment list and certificate would be no evidence of the fact; and it would be necessary in attacking the assessment to prove this fact other than by the admission contained in the letter of the commissioner of public works. The assessment was not, therefore, void upon its face, although it did contain this letter, because upon the production of this assessment list the fact that the work has been done by day’s work did not appear by legal evidence. We think, under this view of the case, therefore, that the assessment was not void upon its face; that the payment was not, therefore, a voluntary one; and that a recovery may be had. The judgment appealed from must be affirmed, with costs. All concur.  