
    Manning C. Palmer and Alva W. Palmer, Appellants, v. The City of Syracuse, Respondent.
    
      Action to recover money paid under an invalid assessment — a new trial ordered where a statute controlling the case was not brought to the attention of the trial court.
    
    Owners of property in the city of Syracuse, who had been assessed for service connections made with the water mains laid in front of their property, paid the amount of such assessments and then brought an action to recover the sums so paid on the ground that the assessments were invalid and imposed without any authority.
    Upon the trial the court determined that the assessments were invalid, but found that the plaintiffs were chargeable with knowledge of the facts which rendered them invalid and dismissed the complaint.
    Chapter 910 of the Laws of 1896, which provides that “Whenever an assessment for a local improvement has been annulled by the judgment or order of any court, any sum of money which has heen heretofore, or shall he hereafter paid thereon, may be refunded with interest from the time of such payment. If not so refunded within one year from the time of such judgment or order annulling such assessment, an action may be maintained to recover such sum with interest thereon,” was not called to the attention of the court.
    
      Held,, that under the circumstances the Appellate Division would order a new trial instead of directing that judgment he entered conformably to the decision adjudging that the assessments were invalid.
    Appeal by the plaintiffs, Manning C. Palmer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 19th day of December, 1899, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing the complaint.
    
      Ceylon H. Lewis, for the appellants.
    
      J. S. Thorn and M. Z. Haven, for the respondent.
   Spring, J.:

This action was commenced to vacate an assessment imposed for expenses incurred by the city of Syracuse in making connections from the water mains to street curb lines in front of the premises owned by the plaintiffs on Onondaga and Tallman streets in that city. The water supply of the city was until 1890 furnished by a water company, and during its ownership the cost of making these connections was, pursuant to the city charter (Laws of 1885, chap. 26, § 165, as amd. by Laws of 1888, chap. 449), borne by the company instead of by the lot owners for whom they were put in. Subsequently the city acquired title to the water system and no change was made imposing upon the owner the cost of putting in these connections. In 1893 the plaintiffs owned premises with a long frontage on the two streets referred to. At that time proceedings were instituted for paving these streets, and by the charter of the city (§§ 154, 165) it was essential to lay water mains in'the- streets and make the connections to the curbs before the pavements were laid. The common council of the city ordered this- paving to be done, and in carrying on the work caused the service connections to be made with the water mains and directed that the cost thereof be charged to the several owners owning property along the streets on which the pavements were laid. The ordinary routine proceedings were gone through with, whereby the assessments were made charging the plaintiffs for their part of these expenses on these two streets, $624.82. The warrant for the collection of the taxes in April, 1894, pursuant to these assessments, was delivered to the city treasurer directing him to proceed in the usual way for their collection, even to the extent of levying the same by distress and sale of the goods and chattels of said delinquent or by suit in the corporate name.” This officer on April 6,1894, served the usual notice upon the plaintiffs of the imposition of the tax, and advising them that .if paid on or before April sixteenth no fee would be charged; but if paid after that time “ the fee prescribed by law will be charged.” The plaintiffs paid the taxes before any fee was imposed, and are now seeking to recover back the sums so paid on the ground that the assessments were invalid and imposed without any authority.

It has been held that assessments imposed for the cost of putting in these service connections with the water mains in the city of Syracuse were invalid, and that the common council in charging ■the burden to the individual owners who were claimed to be benefited by these local improvements exceeded its authority, as the city ■charter did not authorize the assessment. (Alvord v. City of Syracuse, 163 N. Y. 158; Landon v. City of Syracuse, 19 App. Div. 41; affd., 163 N. Y. 562; Kirk v. City of Syracuse, Id. 561.) These cases had been determined by the trial courts and by the Appellate Division, deciding that the assessments were illegal before the present case was tried, and it was conceded on the trial of this .action that the assessments were invalid ; but it was contended that they were voluntarily paid by the plaintiffs and that they might have readily ascertained upon an examination of the charter of the city ■that the common council exceeded its authority in charging these ■expenses to the owners.

In this case the trial court has found as a fact that the plaintiffs were chargeable with knowledge of the facts which rendered •said assessments invalid.” That finding is supported by various items of evidence which are embodied in the decision and which tend to support the finding made. While it may be difficult to reconcile the authorities which uphold or condemn payments of taxes claimed to have been made involuntarily or in ignorance of the facts by reason of which the assessments are illegal, in view of this finding of-fact we do not feel called upon to disturb the decis ion of the trial justice. We are influenced somewhat to this conclusion by another circumstance which will eventually enable the plaintiffs to obtain the relief sought in this action.

Chapter 910 of the Laws of 1896 is entitled “An act to authorize . the recovery of an assessment paid- for a local improvement, which assessment has been annulled.” Section 1 of the. act is as follows : “ Whenever an assessment for a local improvement has been annulled by the judgment or order of any court, any sum of money which has been heretofore, or shall be hereafter paid thereon, may be refunded with interest from the time of such payment. If not so refunded within one year from the time of such judgment or order annulling. such assessment, an action may be maintained to recover such sum with interest thereon.”

The complaint in the present action sets forth' facts showing the invalidity of - the assessments which have received judicial construction in the cases cited, but in cases which of course were confined to the illegal assessments of the respective plaintiffs in those actions. In the present case the invalidity of the assessments was conceded, and the controversy narrowed down to the issue whether the payments were voluntarily made by the plaintiffs, or under such circumstances that notice of the invalidity of the assessments was imputable to them. The statute quoted was not known to the counsel in the case, and the attention of the trial justice was not directed to it. The judgment, therefore, dismissed the complaint, although confessedly the assessments were illegal and so found by the trial judge.

It is contended by the appellants’ counsel that the judgment should be reversed and judgment ordered for the plaintiffs for the amount of the taxes expended, as the invalidity of the assessments was conceded on the trial and determined by the trial justice.- The statute referred to does not permit this to be done-. The remedy it provides for primarily is the annullinent of an assessment, and, after that has been accomplished, the municipality has a year in which to-refund the money paid. The intention of the lawmakers evidently was to give the municipal authorities a reasonable time in which to raise the money to meet an- unexpected call upon their resources, and the statute guards the.rights of the person who has paid the: illegal tax for this delay by allowing him interest On the money so* paid. The practice here suggested was held to obtain in the interpretation of this statute in Wallace v. Mayor (53 App. Div. 187; affd., 165 N. Y. 658). In that case the assessments for local improvements in New York city, upon the same roll with that of the plaintiff’s testator, but upon the property of other owners, had been vacated and the lien thereof canceled, but the judgment did not inure directly to the benefit of the plaintiff, as the amount of the tax imposed was a' distinct assessment and must be separately annulled, and the fact that the lien of one or more assessments was discharged did not operate to annul the whole assessment. While the illegality of the assessments was conceded and determined, the case was not tried with reference to the statute which the appellants now invoke, and we deem it but fair that a new trial be ordered instead of formally directing that judgment be entered conformably to the decision adjudging that the assessments are invalid. The decision we now make, it is hoped, will result without further litigation in a formal determination that the assessments are invalid and in the refunding of the moneys paid by the plaintiffs for taxes pursuant to these void assessments.

The judgment should be reversed and a new trial ordered, but without costs of this appeal to either party.

All concurred, except Hiscook, J., not sitting.

Judgment reversed and new trial ordered, without costs of this appeal to either party.  