101 N.Y. 240 | NY | 1886
The plaintiff in his complaint alleged that in 1875 he owned certain lands situated in the village of Port Chester, and that they were assessed for certain local improvements; that the commissioners of estimate and assessment appointed under the defendant's charter to apportion and assess the expenses of the improvement upon the adjacent premises did not take the oath required by the charter to be taken by them, nor *243
did they, after making their estimate and assessment, publish a notice of the time and place when and where interested parties could be heard in manner and form as required by the charter, whereby, and by means of such omissions, the report of the commissioners and the confirmation thereof, and the assessment upon his lands were illegal and wholly void at law; and he further alleged that the defendant was estopped from denying that the assessment was totally void in law, for the reason that, since the payment of the assessment, the defendant was impleaded by one Sarah Merritt and others in an action presenting the same identical issues and question presented in this action, wherein it was adjudged that the assessment was utterly void for the reasons and upon the grounds above stated. (Merritt v. TheVillage of Port Chester,
It does not appear from any thing alleged in the complaint that this assessment was invalid upon its face, or that its invalidity would appear in any proceeding taken to enforce it. *244
The contrary must have been determined in the case of Merritt
v. Village of Port Chester; but it is distinctly alleged in the complaint, and was decided in this court in that case, that the assessment was in fact utterly illegal and void. Hence it was not necessary for the plaintiff to institute any action or proceeding to vacate the assessment and thus have it annulled and set aside before commencing this action. If the assessment had been merely irregular, informal or unjust, the assessors having jurisdiction to impose the same, then, before an action to recover back the money paid in satisfaction thereof could be maintained, it would have been necessary to have the same vacated or annulled in some way and thus removed as an obstacle out of the way. But where an assessment is in fact utterly void on the ground that the assessors had no jurisdiction to impose the same, then an action may be maintained to recover back money paid in satisfaction thereof without first having the assessment set aside or vacated. And so it has been held. (Newman v. Supervisors of LivingstonCo.,
These rules in reference to money paid upon assessments were established from the analogy which was supposed to exist between completed assessments and judgments. Money paid upon a judgment which is merely irregular or erroneous cannot be recovered back while the judgment remains in force. But money involuntarily paid upon a judgment which is utterly void can be recovered back without first causing the judgment to be reversed or vacated.
This was not a voluntary payment by the plaintiff within the rules of law applicable to such payments. We must assume that the assessment was valid upon its face, and that a valid warrant was out for its collection; and it has been repeatedly held that payment to an officer who has a valid process which he can enforce and which he threatens to execute is not a voluntary payment. (Peyser v. Mayor, etc.,
We are, therefore, of the opinion that the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.