36 N.Y.S. 211 | N.Y. Sup. Ct. | 1895
This action was brought to recover the amount of an assessment levied upon the plaintiff’s property by the defendant for resetting curbs on the streets in front of said property, and which was paid by the plaintiff to the collector of the village. An assessment for similar work was declared void by this court in the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185, 31 N. Y. Supp. 592. The assessment reviewed in that case depended upon the same provision of the village charter as that levied against the plaintiff, but the effect of the decision of the court in Spencer’s Case was not to set aside all the assessments for recurbing levied under the resolution of the trustees of the village, but only that agaihst the relator in that proceeding. The case was not one where a single sum of money, to be raised by assessment, was divided and distributed over a given district. Each assessment was separate and distinct from all others, and was supported by facts applicable alone to the property and individual assessed. This action may, however, be maintained, although the assessment has not been declared invalid, if (1) the assessment is void upon the face of the proceedings, and (2) if the payment made by the plaintiff was involuntary, and the result of coercion in fact or in law. That the assessment was void upon the face of the proceedings is not disputed by the appellant, and it was so decided by this court in Spencer’s Case, supra. It is, however, claimed that the payment made by the plaintiff was voluntary, and that question is the only one to be considered on this appeal. It appears that after the assessment was levied the trustees of the village caused a warrant to be issued for the collection thereof to the collector, whereby said collector was directed, after the expiration of 60 days from the date of the warrant, if said assessment was not paid, to collect the same by distress, in the same manner as collectors of town taxes are authorized by law to do. While said warrant was in the hands of the collector, the plaintiff, not knowing that said assessment was invalid, but supposing it was enforceable,
The judgment must be reversed, with costs of appeal, and the complaint dismissed, with costs. All concur.