
    Jerusha Vaughn, Resp’t, v. The Village of Port Chester, App’lt.
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Municipal corporations—Assessments—Payment under coercion.
    Plaintiff had contracted to sell certain land to the hoard of education, and to convey free of incumbrance. When the deed was to be delivered an assessment for grading stood against the property, and the warrant was in the hands of the receiver. On the day he returned it the board of village trustees passed a resolution for the advertisement and sale of all property upon which the assessment had not been collected, and refused to allow a deposit of sufficient of the purchase money to abide the result of a test suit as to the validity of the assessment. Thereupon, plaintiff paid the amount under protest. Subsequently, the assessment was determined to be illegal. Held, that the payment was not voluntary, but was made under such coercion by law as would sustain a recovery back of the moneys.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      Maurice Dillon, for app’lt; Wilson Brown, Jr., for resp’t.
   Gray, J.

The plaintiff has succeeded below in vacating an assessment imposed upon her property by the defendant, upon the ground of its illegality, and by the judgment she has been awarded the recovery back of the moneys she had formerly paid in discharge of the assessment. The assessment was laid in 1878, and was in the nature of a re-assessment, to cure defects invalidating an earlier assessment for the expense of grading ay avenue in the village. The payment of this assessment was made in January, 1880, and under these circumstances. The plaintiff had contracted to sell to the board of education the property in question, and • to convey free of incumbrance. When the deed was to be delivered, this assessment stood against the property, and the warrant for its collection was in the hands of the receiver of taxes, not yet returned. The receiver returned his warrants on January 5, 1880, and, on the same day, the board of village trustees passed a resolution for the advertisement and sale of all property upon which the assessments had not been collected. An effort to arrange for a suspension of the enforcement of the assessment failed, the vendee of the property being willing to agree to take the deed, and that there might be a deposit of sufficient of the purchase money to abide the result of a test suit as to the validity of the assessment. Thereupon, and on January 24, 1880, the plaintiff paid the amount due under the assessment, protesting, at the same time, against being compelled to make the payment. Subsequently the illegality of the assessment was determined, in an action commenced in March, 1880, to obtain such a determination; the final decision of this court being given in January, 1886. Tingue v. Port Chester, 101 N. Y., 294; 1 St. Rep., 9.

Upon the trial of the present action, the illegality of the assessment complained of was conceded, on the strength of our decision, and the litigation has turned upon the question of whether the payment was made under such coercion by law as would sustain a recovery back of the moneys. The defendant insists, andi that presents the only ground upon which we need consider its appeal, that the payment was voluntary on the plaintiff’s part. If that were true and it was made simply to enable her to close with the vendee for the sale of the property, then the appellant should prevail. If a payment of an illegal assessment is made to successfully close a business transaction, it is a payment for convenience and, therefore, voluntary. To make it involuntary, it must be made because of coercion in fact, or coercion by law. The former would be exemplified in some duress of person or of goods, and the latter would exist if a warrant was out for the collection of the assessment, or where such proceedings had been taken under the charter of the municipality as should, or could, result in the enforcement and realization of the assessment. Bruecher v. Port Chester, 101 N. Y., 240; Redmond v. Mayor, etc., 125 id., 632; 35 St. Rep., 917; Tripler v. Mayor, etc., 125 N. Y., 617; 36 St Rep., 141.

This plaintiff did not pay this assessment until there did exist such a legal compulsion as would justify her conclusion that, payment alone could prevent the" enforcement of the collection by the village authorities. Admitting that the receiver of the village lacked sufficient power to enforce his warrant, there, nevertheless, was the further step taken by the village trustees-upon the receiver’s return, by the resolution directing the treasurer to sell. When proceedings to collect the assessment had taken such legal shape as that the payment might be enforced by a sale authorized to be made, then the payment by the plaintiff could not be termed a voluntary one, within the doctrine laid down in the cases of Peyser v. Mayor, etc., 70 N. Y., 497 ; Horn v. New Lots, 83 id., 100 ; Bruecher v. Port Chester, supra, and Tripler and Redmond v. Mayor, etc., supra.

This plaintiff was not obliged to pay the assessment to successfully complete a sale of her property ; for the vendee was willing to take title, under indemnity against the future obligation to pay the assessment. She paid the assessment when" proceedings to collect it had reached that point that the collection was threatened to be enforced by a sale of her property. I do not think she was obliged to wait any longer to see what would actually be done, after the board had thus authorized the advertisement and sale. She was justified, then, in paying to the village treasurer in order to protect her property and to prevent incurring the further expense contemplated.

T think the judgment should be affirmed, with costs.

AH concur. 
      Affirming, 39 St. Rep., 793.
     