Forrest v. Mayor of New York

13 Abb. Pr. 350 | N.Y. Sup. Ct. | 1861

Leonard, J.

—The complaint is defective in not averring that the plaintiffs are the executors of Fanshaw.. It is not sufficient to style the plaintiffs as executors in the entitling of the complaint. Bo issue can be taken by answer to the description of the parties in the title.

The money sued for was paid to discharge an assessment on certain lots in the city of Bew York, imposed in 1857, paid in 1858, and vacated for “fraud and illegality” in 1859. The averment is, that the assessment was paid "under protest on compulsion, and in order that the owner might use his lots.

I think the compulsion mentioned must be • considered to refer to the inconvenience the owner encountered in using" his lots by selling or mortgaging them. Bo facts are mentioned which show any compulsion. It is difficult to suppose that any actual compulsion can be used in respect to real estate. If the assessment was fraudulent or illegal, the owner should have resisted the payment. The land would not disappear or perish, nor would his title be impaired, while he was taking the proper steps to resist the illegal or fraudulent assessment.

The payment was. voluntary on the part of the plaintiffs, and received by the defendants under claim of right. The plaintiffs objected that they were not liable to pay; and so far as protesting went, they did not admit, but denied the defendants’ right to receive the assessment.

There is no allegation that the plaintiffs were under any mistake or ignorance of the facts when they paid the money. .

On this subject of a protest, I quote the language of a learned j udge, reported in such a case as the present, in Fleetwood a. The City of New York (2 Sandf., 481) : “ Where there is no legal compulsion, a party yielding to the assertion of an adverse claim cannot detract from the force of his concession by saying, I object, or I protest, at the same time that he actually pays the claim. The payment nullifies the protest as effectually as it obviates the previous denial and contestation of the claim.”

Where there is no mistake, or ignorance of the facts, and the payment has been voluntarily made, under a claim of right by the party receiving, no action will lie, to recover back money so paid.

The present is quite analogous to the case in Sandford’s Reports above referred to.

The plaintiffs have omitted to aver that their testator was the owner of the lots referred to.

Judgment for the defendants on the demurrer, with leave to the plaintiffs to amend in twenty, days, on payment of costs to be adj usted by the clerk.