
    The Mutual Life Insurance Company of New York, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
    
      Invalid assessment — action to recover the amount paid — when maintainable.
    
    jf a person pays in good faith, an assessment valid on its face, but void for want of jurisdiction, without notice of its invalidity, he can maintain an action to recover the sum so paid.
    Where a contract for the excavation of rock from a city street was let by such city without advertising for proposals, as required by statute, the assessment made for paying- the cost of such excavation is void.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of the clerk of the county of New York on the 5th day of March, 1894, upon the verdict of a jury directed by the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 19th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    
      O. L. ¡Sterling, for the appellant.
    
      Charles E. Miller, for the respondent.
   Follett, J.:

October 30, 1876, the defendant entered into a contract with Bartholomew Noonan for the construction of a sewer in a street on which a lot of the plaintiff abutted. The contract provided for the excavation of rock at a price agreed on, though the proposals for doing the work had not been advertised as required by the statute then in force. (Chap. 335, Laws 1873, § 91.)

In 1879 an assessment of $1,398.88 on account of work done under this contract was levied against the plaintiff’^ lot, of which sum $996 was for the expense of excavating the rock under the contract. Subsequently the plaintiff, in ignorance of the fact that the contract for excavating rock had been let without advertising for proposals, as required by the statute, and not knowing that the assessment for paying the cost of its excavation was void, paid to the defendant the sum assessed, with interest. This assessment, though valid on its face, was void for want of jurisdiction. (Jex v. Mayor, 103 N. Y. 536; Matter of Merriam, 84 id. 596.) The plaintiff having paid the assessment in good faith, and without notice of its invalidity, may maintain this action to recover the sum paid. (Tripler v. Mayor, 139 N. Y. 1.)

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment affirmed, with costs.  