
    Robert F. Brundage, App’lt, v. Village Of Port Chester, Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Statute of limitations—Taxation.
    In the year 1874 the defendant was indebted to the plaintiff for upwards of $5,000 for grading done by him upon Hoseco avenue, but plaintiff was liable to contribute to .work on village streets, and had been theretofore assessed by the village authorities over $3,000 for that purpose, and they threatened to sell.his land to enforce such assessment. Plaintiff demanded his money, but the treasurer refused to pay any more than the balance due, about $2,000, which defendant finally accepted and the assessment against him was discharged. Plaintiff now claims the "amount deducted, as for money had and received by defendant for plaintiff’s use, upon the ground the assessment was illegal and void. Held, that the cause of action was that outlawed, as it was simply one in assumpsit, and subject to the six years’ limitation alone, and was not one in equity to vacate and set aside an assessment as illegal and void.
    2. Same.
    The acceptance by the plaintiff of a certain amount upon his debt operated as payment, pro tanto, and left him at liberty to sue for and collect the balance at any time thereafter within the statutory period of limitations.
    Appeal from judgment and order of general term, supreme court, second department, reversing judgment in favor of plaintiff, and granting new trial.
    
      Isaac N. Mills, for respondent; Wilson Brown, Jr., for appellant.
   Ruger, C. J.

In the year 1874 the defendant was indebted to the plaintiff in the sum of upwards of $5,000 for work and labor performed by him in the grading of Hoseco avenue in that village. The plaintiff was also then apparently liable to contribute to the expense of building and grading village streets, and had been theretofore assessed for that purpose by the village authorities in the sum of upwards of $3,000, and they threatened to enforce and collect such assessment by a sale of his land. Under these circumstances, the plaintiff demanded1 payment from the village of the whole sum due him for work, but the village treasurer refused to pay the amount, but offered to pay the balance due him, after deducting the amount of the assessments in question. The plaintiff finally consented to accept such balance, and it was paid to him hi 1874, and the assessment 1 against him was thereupon canceled and discharged by the treasurer. This transaction is the basis of the plaintiff’s claim to recover back money paid by him to the defendant.

It isnot alleged in the complaint, and does not appear by the evidence or findings, that the plaintiff receipted for or canceled the indebtedness of the village to him, or that his right to enforce payment thereof was barred by any act done by or required of him by the defendant. This action was brought to recover back the amount so deducted as for money had and received by the defendant for plaintiff’s use, upon the alleged ground that the assessment referred to was illegal and void. The defense is the statute of hmitations, and the question in the case is whether the ten or six years limitation applies.

It is claimed by the plaintiff that the action is in equity, to vacate and set aside the assessment as illegal and void, and to recover back the money paid as an incident of such relief. On the other hand, it is denied that any such relief is shown to be necessary' and that the action is simply one in assumpsit, and subject to the six-years limitation alone. We think-the defendant’s position is unanswerable.

It cannot be disputed but that if the action was brought to recover back the money paid upon an assessment apparently valid, and levied according to the forms of law, but rendered illegal by extrinsic facts, or those which were not apparent upon the face of the proceedings, that it was necessary for the plaintiff to proceed in equity to vacate such proceedings before he could recover back moneys paid thereon. Horn v. Town of New Lots, 83 N. Y., 100. There are several reasons, however, why this is not such a case.

First. The complaint shows affirmatively that the plaintiff is not entitled to equitable relief. It alleges in unqualified terms that the assessments which afforded the only ground for claiming equitable relief had been vacated and annulled long prior to- the commencement of the action, and this allegation is not only not denied by the answer, but is sustained by the express findings of the trial court, and must be regarded as an undisputable fact in the case. Breucher v. Village of Port Chester, 3 N. E. Rep., 736. If the action be considered, therefore, as anything but one in assumpsit, it is not maintainable at all, either upon the pleadings or the findings.

Second. The evidence shows conclusively that no right of action accrued to the plaintiff out of the conduct of the defendant in requiring the application of the illegal assessment upon its indebtedness to the plaintiff. That indebtedness was not discharged by such action, but remained an existing and enforceable demand against the defendant as well after as before such transaction. The act of the defendant did not extinguish the plaintiff’s demand, or change the character of its liability to him. The existence of the illegal assessment would have constituted no defense to an action for its debt, and in the prosecution of such an action it would have been unnecessary, in the first instance, to impeach the validity of such assessment, as it could be availed of only by way of counter-claim to his actions, and, as such, was assailable at law for its illegality. Even if we could imply from the evidence in the case that the plaintiff assented to the application of his debt, the fact that it was obtained by duress vitiated such consent as much as it deprived the payment of its voluntary character, and would not stand in the way of a prosecution of his claim. The transaction did not operate in any way as a payment of the debt.

And an action thereon was governed by the six-years, period of limitations, and expired three years before the action was commenced. The acceptance by the plaintiff of a certain amount upon his debt operated only as payment pro tanto, and left him at liberty to sue for and collect the balance at any time thereafter within the ’statutory period of limitation. The cause of action, and the only cause of action, existing in favor of the plaintiff, arose upon the maturity of his debt against the defendant, and not at the time of its attempted application, and the statute of limitations then began to run against it.

Third. Ho money was paid by the plaintiff to the defendant upon the assessment in question. The defendant has simply neglected to pay the plaintiff the amount due from it, and remains liable to him for the balance. This liability has not been converted into another cause of action by its refusal to pay the debt. An action to recover for money paid, or had and received, will not lie generally, except upon the payment of money. National Trust Co. v. Gleason, 77 N. Y., 400; Cummings v. Hackley, 8 Johns., 202; Moyer v. Shoemaker, 5 Barb., 319. It has been held, however, that the action may be maintained when its equivalent has been actually accepted as money by the party receiving it; as, where an agent has discharged his principal’s debt by applying thereon a debt owing by himself, Beardsley v. Root (11 Johns., 464), or where a surety has transferred property to the creditor, who received it in payment of a judgment. In such cases the principal has been held liable for the amount of his debt discharged by the payment, as for money paid by the surety for him. Bonney v. Seely, 2 Wend., 481. But here nothing has been received by the defendant, and its legal situation remained unaffected by the attempted application of the illegal assessment upon its indebtedness. Heither money or its equivalent has been received by the defendant, and the effort to sustain this action is an attempt to convert a simple contract liability into one to recover for money illegally held by the debtor for the use of the creditor. We do not find any case going far enough to uphold such a claim. The order should therefore be affirmed.

All concur.  