
    MARGARET C. SMYTH, Plaintiff v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant.
    
      Assessment, voluntary payment of.
    
    Plaintiff after having on her petition obtained from, the Supreme Court in July, 1881, an order vacating an assessment and directing the municipal officers to cancel and discharge the same and the lien or liens upon the records of their respective offices so far as the same affected plaintiff’s lot, neglected to enter the order until 1889. In the meantime she, in order to procure a loan upon mortgage on her lots, paid the assessment, no threat to sell the property having been made on behalf of the city and no proceedings of any kind to compel payment of the assessment.
    
      Held, a voluntary payment.
    Before Freedman and Ingraham, JJ.
    
      Decided November 3, 1890.
    Application for judgment in an action tried before a jury where the court directed a verdict for defendant subject to the opinion of the court at general term.
    The facts sufficiently appear in the opinion.
    
      James A. Deering, attorney and of counsel, for plaintiff, made the same points as to the payment being involuntary as he made in the preceding case, and he also argued :—
    I. The assessment having been vacated by a judgment of the supreme court, the plaintiff has an absolute right to recover the same. Jones v. The Mayor, Supreme Court, General Term, Nov. 1886. See Appendix ; Peyser v. The Mayor, 70 N. Y. 497 ; Pursell v. The Mayor, 85 lb. 330 ; Parsons v. Rochester, 5 N. Y. St. Rep. 469.
    II. The plaintiff is entitled to recover the assessment paid by her for the reason that the same was in fact illegal and void because there was fraud in the proceedings relative to the assessment and such fraud did not appear upon the face of the assessment list, but was adjudicated and settled by the order and judgment-of the Supreme Court of July 21, 1881. Jex v. The Mayor, 103 N. Y. 536 ; Bruecher v. Portchester, 101 lb. 240, 244 ; Strusburg v. The Mayor, 87 lb. 453 ; Hone v. The Town of New Lots, 83 lb. 100 ; Peyser v. The Mayor, 70 lb. 497 ; Nat. Bank of Chemung v. Elmira, 53 lb. 49; Newman v. Supervisors, 45 lb. 676 ; March v. Brooklyn, 59 lb. 280 ; Bank of Commonwealth v. Mayor, 43 lb. 187 ; Tripler v. the Mayor, 52 Hun, 36 ; Parsons v. Rochester, 5 N. Y. St. Rep. 469 ; Brehm v. The Mayor, 6 lb. 661 ; Vaughn v. Portchester, 6 lb. 681.
    III. The order of the Supreme Court made July 21, 1881, was not affected by the fact that it was not entered until July.24, 1889. The validity of the order is not affected by delay. Whitney v. Belden, 4 Paige, 140. The defendants were in no manner prejudiced by the delay in entering the order.
    IV. The said order of the Supreme Court and the proceedings to vacate the assessment in the said court were not affected by the proceedings subsequently taken before the assessment commission under chap. 550 Laws of 1880. Chap. 550, Laws of 1880, § 8 ; In re Longe, 85 N. Y. 307.
    
      William H. Clarke, counsel to the corporation, and George L. Sterling of counsel, for defendant, argued on the questions considered in the opinion:
    The payment was made with full knowledge of the facts and was voluntary, and cannot therefore be recovered. Phelps v. The Mayor, 112 N. Y. 21 ; Vannest v. The Mayor, &c., 113 lb. 652 ; Wilcox v. The Mayor, 21 Jones & Spencer, 436 ; Sands v. The Mayor, 13 N.Y. State Reporter, 61 ; Clarke v. Dutcher, 9 Cow. 674 ; Sprague v. Birdsall, 2 lb. 419 ; Fleetwood v. the Mayor, 2 Sandf. 475 ; Supervisors of Onondaga v. Briggs, 2 Den. 26 ; N. Y. & Harlem R. Co. v. Marsh, 12 N. Y. 308 ; Sanford v. The Mayor, 33 Barb. 147 ; Union Bank v. Mayor, 51 lb. 159 ; Flower v. Lance, 59 N. Y. 603; Peyser v. The Mayor, 70 lb. 497 ; Sexton v. Pepper, 28 Hun, 31 ; Lamborn v. County Commissioners, 97 U. S. 181 ; Union Pacific R. Co. v. Commissioners of Dodge County, 98 lb. 541 ; Oceanic Steamship Navigation Co. v. Tappan, 16 Blatch. 296 ; Union Insurance Co. v. City of Allegheny, 101 Penn. St. 250.
   By the Court.—Ingraham, J.

We think the payment of the assessment in this case was clearly a voluntary payment. Prior to the time of the payment proceedings had been commenced to have the assessment declared void, and an order had been signed by one of the justices of the Supreme Court, dated on the 21st of July, 1881, vacating the assessment and directing the municipal officers to cancel and discharge the same. and the lien or liens upon the records of their respective offices so far as the same affected plaintiff’s lots. This order does not appear to have been filed until some time in 1889. The court, however, had decided that the assessment was void and that it should be vacated.

In order to remove the lien of the assessment from the plaintiff’s property, she had to file the order, take a certified copy of it to the proper officers, and the lien was discharged. Instead of that she went and paid the assessment. There was no threat on behalf of the city to sell the property, and the assessment was paid not on account of any proceedings of any kind taken by the city but for her own purpose, viz., to obtain a loan on mortgage.

The case comes directly within the case of Phelps v. The Mayor, &c., 112 N. Y. 216 ; it was there stated: “We do not understand that the rule goes further in its authority to permit a recovery back of the moneys paid by a person under a tax or assessment than in a case where its payment being compelled by the actual or threatened seizure of his person or divesture of his goods.” Here the assessment had been declared by the court to have been illegal on plaintiff’s petition and an order signed so adjudging. A payment made under such circumstances was not compelled by an action or threatened seizure of his person or divesture of his goods.

We think, therefore, the defendant is entitled to judgment on the verdict, with costs.

Freedman, J., concurred.  