
    ROBERT H. FISHER and others, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    
      Laws of 1813, chap. 86 — lien of assessments imposed under — effect of invalid sale on — presumption of payment.
    
    In 1837 an assessment was imposed upon-certain premises in the city of Hew York, in pursuance of chapter 86, Laws of 1813, and constituted a lien thereon, for the enforcement of which the premises were subsequently sold; but, the sale being invalid, the amount paid therefor by the purchaser was subsequently refunded to his assignee. . In 1862, the land was taken for widening a street, and the amount of the damages awarded therefor, less the -amount of the assessment, with interest from 1837, was paid into court, and, in the same year, demanded by and paid to the plaintiffs herein, the owners of the land. In 1869 this suit was commenced to recover the amount so retained. Held (1), that the lien of the assessment was not destroyed by the invalid sale; (2), that the lapse of time, between the taking of the land and the commencement of this suit, was strong evidence of acquiescence in the right of the defendant to discharge the lien by retaining the amount of the old assessment, and that such assent would be a complete defense to an action brought to recover the amount so retained.
    Where premises are taken for public streets, upon which, at the time, there exists a valid lien for a previous assessment, lawfully imposed, and which may be enforced as a mortgage, the amount thereof may be deducted from such damages.
    Where a party desires to take advantage of the presumption of payment of an assessment, arising from the lapse of more than twenty years from the time it was imposed (prior to 1887), payment, and not the statute of limitations, should be pleaded.
    
      Henderson v. Henderson (3 Denio, 314); Pattison v. Taylor (8 Barb., 350) followed.
    Appeal from a judgment, entered on a verdict directed by the court. The facts proven on the trial are set forth in the case as follows: In 1860, the defendants, being a municipal corporation, caused certain premises belonging to the plaintiffs, numbered forty-seven on the damage map in proceedings for the widening of Worth street, on the southerly side, between Hudson and Baxter streets, in the city of Hew York, to be taken for the purpose mentioned in the said proceedings, by virtue of the statute in such case made and provided. The commissioners of estimate awarded to “ unknown owners ” the sum of $13,800 for the taking of the said lands as aforesaid. The defendants, in or about April, 1862, paid into this court the sum of $11,059.43, part of the said award, to the credit of ■“ unknown owners,” which sum has been paid to the plaintiffs on their application.
    The defendants have neglected and refused to pay into this court the sum of $2,740.57, the residue of the said sum of $13,800, awarded as aforesaid, and the defendants retain the sum of $2,740.57, for the purpose of satisfying an assessment of $990, which was imposed on the said lands, in 1837, for widening Centre street in the said city, amounting, with interest, at the time the said sum of $11,059.43 was paid into court, to the sum of $2,740.57, ■ which assessment, at the time it was imposed, constituted a lien upon the said land. The land was sold in 1838 for the collection of the said assessment, in proceedings instituted by the defendants for that purpose, to M. Dougherty, for the term of 165 years, for $1,115.34, the amount of the said assessment and expenses. The said Dougherty assigned the certificate of the said sale, issued to him by the defendants, to Leonard Fisher, December 24th, 1840.
    Afterward, between 1850 and May 14th, 1852, the common council of said city, by resolution, ordered the money paid by said Dougherty, as aforesaid, to be refunded to him or his assignee, in consequence of irregularities in said sale, rendering the same invalid; and the certificate .of sale was returned by Leonard Fisher to the comptroller of the city of Hew York, on the 14th day of May, 1852, and the money paid by Dougherty, namely, $1,115.34, together with interest thereon from the time of payment, was, on that day, refunded to Leonard Fisher.. That said Leonard Fisher was then in possession of the said land, and owned a life estate therein under the will of his father. That the plaintiffs, at that time, were the owners of an estate in such land in remainder in fee under the said will, the plaintiffs, except the administrator of Olin C. Hutchins, being the children of said Leonard Fisher. The plaintiffs, at the time of the taking of the said lands by the defendants as aforesaid, were in possession thereof in fee, the said Leonard Fisher being then dead. Upon the record of said assessment, under the column headed, “ When and by whom redeemed,” the following entry is written: “Assessment paid January 3d, 1863, by the comptroller.” The plaintiffs proved that the demand of payment set forth in the complaint had been made upon the comptroller, and of the mayor, aldermen and commonalty in common council convened, on the 20th day of August, 1869, and it was admitted that the action was commenced on the 22,d day of December, 1869. Upon these facts the defendants’ counsel moved to dismiss the complaint, which motion was denied, and defendants excepted. Defendants’ counsel also moved that a verdict be directed for the defendants, which motion was denied, and exception duly taken. The court directed a verdict for the plaintiffs for the amount claimed, with interest, to which direction defendants’ counsel duly excepted.
    
      E. Delafield Smith and D. J. Deam, for the appellants.
    This action is barred by the statute of limitations. It is brought “ upon a liability created by statute.” In the absence of a statutory provision, no direct action to recover the .award would lie. (Lake v. Trustees of Williamsburgh, 4 Denio, 520; McCulloch v. The Mayor, 23 Wend., 458; Richardson v. The City of Brooklyn, 34 Barb., 570; Beard v. City of Brooklyn, 31 id., 142; Hunt v. Utica, 18 N. Y., 442; Buck v. Lockport, 6 Lans., 251.)
    
      Philip S. Crooke, for the respondent.
    
      
       Valentine’s Digest, p. 1193, § 178.
    
   Davis, P. J.:

The plaintiffs seek in this action to recover the unpaid balance of the damages awarded for their lands taken by the city for the purpose of widening Worth street. Their action is based upon the statutory rights given by section 183, of chapter 86, of the Laws of 1813, and it of course proceeds upon the assumption and concession that the proceedings in taking the lands and making the award were regular. Two defenses are interposed by the defendants : 1st. The statute of limitations. 2d. An assessment upon the same premises for the widening of Centre street, which it is alleged became a lien on the land on the 4th of January, 1837, and remained due and unpaid until the 24th day of April, 1862, at which time the sum of $2,740.57, was due thereon for principal and interest, from the plaintiffs to the defendants, and which sum was a lien on the-said property of the plaintiffs, and was retained from the said award in payment and satisfaction of the assessment. In reply to the second defense, the plaintiffs put in issue the alleged assessment for the widening of Centre street, and the lien thereof on the lands, and allege that the assessment was illegally imposed. They do not set up any statutory or other limitation to a right of action upon the assessment. Nor do they allege payment thereof in the nature of a plea of payment. All that is set up on that subject, is in connection with the alleged illegality of the assessment, and the reply avers the repayment of the sum paid on.the ground of such illegality. From the facts shown at the trial as above set forth, it must be assumed that the assessment imposed in 1837 for widening Centre street was regularly made, " and, at the time it was imposed, constituted a lien upon the land.” The nature and extent of this conceded lien is specially declared by section 223, of' the act above cited, which provides that the assessment shall be a lien or charge upon the houses and lots in respect to which such assessment shall have been made, and shall bear lawful interest until paid, and shall be entitled to a preference before all other incumbrances upon the same, and may be sued for and recovered, with costs, in like manner as if the said houses and lots were mortgaged to the mayor, aldermen and commonalty for the payment thereof.” This statute has received a very clear and explicit construction by the Court of Appeals, in The Mayor, etc., v. Colgate. That case disposes of several of the questions that arise in the present case. It settled that the intermediate invalid sale of the premises for the'assessment, and the subsequent cancellation of the sale and return of the money to the purchaser, had no effect upon the lien of the assessment, or to prevent subsequent proceedings to collect the same by enforcing the lien as in the nature of a mortgage. It also established that the statute of limitations, requiring actions to be commenced within six years after the cause of action accrued, did not apply to such assessments; and that the assessment was “ to be considered as, in effect, a mortgage, as well in regard to the time of commencing an action upon it, as in other respects,” and therefore was subject to no law of limitation, except the presumption of payment, which would not attach until after the expiration of twenty years. The limitation of twenty years for bringing actions, provided by the Code in 1848, does not apply to causes of action which had then already accrued; and the right of action for this assessment accrued in 1837. It seems quite clear, under the statute and authority above cited, that the assessment of 1837, for opening Centre street, became a lien on the premises of plaintiffs which were afterward, in 1860, taken by defendants for the widening of Worth street, and that such lien remained (undisposed of by the intermediate invalid sale) until the taking of said premises for the purpose last mentioned, subject only to a presumption of payment arising from the lapse of more than twenty years. When the award of damages for taking the premises was complete, in 1862, the defendants paid into court the full amount thereof, less the assessment of 1837 and interest, claiming to retain the same to apply on such assessments. The plaintiffs took the money paid into court; and afterward, in December, 1869, commenced this suit for the amount so retained. If the presumption of payment of the lien had attached to 'the assessment before 1862, it was not conclusive, but, as said by Bronson, C. J., in Henderson v. Henderson, “ a prima faoie presumption which may be repelled,” etc. If the plaintiffs relied upon this presumption of payment, they should have pleaded payment in their reply to the answer which set up the assessment and lien, and averred the right to apply the moneys thereon. It was held, in Henderson v. Henderson, and in Pattison v. Taylor, that the presumption of payment must be pleaded as payment,” and that a plea of the statute of limitations was bad on demurrer. Instead of so pleading, the plaintiffs put in issue the existence of the assessment and ■ lien, and set up payment of the assessment, in a particular manner and form, which they fail to establish. It seems to us, therefore, that the court below should have held that the assessment and lien continued unpaid, and in full force, at the time the amount thereof was retained by the defendants. This, it will be recollected, was in April, 1862. Seven years and more elapsed before suit was brought for the amount retained, and this lapse of time was certainly strong evidence of acquiescence in the right of the defendants to discharge the lien by retaining the amount of the old assessment. It would have gone far toward rebutting a plea of payment,, founded on the lapse of time, for it is quite certain that an assent to the application of a part of the proceeds of land to extinguish an outlawed lien, would be a complete answer to an action brought to recover the sum so applied; and such assent may well be inferred from the facts as they appeared in this case. Where premises are taken for public streets, upon which at the time there exists a valid lien for a previous assessment lawfully imposed, and which may be enforced as a mortgage against the property, we see no good reason why the amount of such lien should not be regarded as attaching to the damages awarded for the taking of the premises, nor why the same may not be lawfully deducted from such damages. We are, therefore, of opinion that it was error to direct a verdict for the plaintiffs upon the facts proved.

It is not necessary to consider whether the statute of limitations was well pleaded by the defendants, for on the question already considered it seems to us that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event. 
      
       Laws of 1813, chap. 86.
     
      
      2 Kern., 140.
     
      
       2 R. S., 296, § 18, sub. 1.
     
      
      
         Per Denio, J., p. 156.
     
      
       Mayor v. Colgate, ubi supra, p. 156; Heyer v. Pruyn, 7 Paige, 465; 2 R. S., 301, sec. 48.
     
      
       Sec. 70, of 1848.
     
      
       Code, sec. 73.
     
      
       3 Denio, 314.
     
      
       8 Denio, 314.
     
      
       8 Barb., 250.
     