Three propositions may be regarded as established in the law as to taxation and assessments, by the courts of this State: First, An action in equity to vacate an assessment and restrain its collection cannot be maintained merely because the assessment is for any reason invalid or illegal.
(Heywood
v.
City of Buffalo,
14 N.
Y.
534;
Guest
v.
City of Brooklyn,
69 id. 506.) This has its foundation principally in public policy. It would lead to great embarrassment and inconvenience if the collection of taxes and assessments were to be delayed by such actions. Second, An action at law cannot be maintained "to recover back money paid upon an illegal assessment which the assessors had jurisdiction to impose, and which is not void upon its face, so long as the assessment remains unvacated and unreversed.
(Swift
v.
City of Poughkeepsie,
Upon the facts alleged in the complaint in this action, if the *456 assessment remained unpaid, it is conceded that an action could be maintained by the plaintiff to vacate it as a cloud upon Mr title; M-t by payment, it has ceased to be a cloud, and hence no aqtiin is needed, or can be maintained, to vacate it on that ground.
The assessment has not been vacated, and hence, if this were merely an action at law to recover back the money paid upon the assessment, as it was assumed to be in the court below, it could not be maintained. But this action is in equity, and'the relief prayed is for judgment declaring the assessment invalid to the extent of the over-payment claimed by the plaintiff, and then to recover the amount of such over-payment. Why may not such an action he maintained ? There is no case to be found in the hooks holding that it cannot he. There can be no objection that both kinds of relief are sought in the same action. In that respect, it is analogous to an action in equity to reform a written instrument and then enforce it as reformed, and such actions have been frequently sanctioned by this court. Here is a case where it is conceded that the plaintiff is equitably and justly entitled to the sum which he seeks to recover. The only obstacle in his way is the nnvacated assessment. That obstacle, without any fault of his, he cannot overcome or remove in an action or proceeding at law. Ho degree of vigilance which could have been expected or required of M'm i would have enabled him before payment to discover the illeIgality in the assessment. Unless, then, he can have equitable ’relief, there will he a wrong without a remedy — an absolute failure of justice. Upon general principles of equity, then, we think he should have the equitable relief he seeks, against the obstacle interposed, in aid of the legal relief which he demands.
But there is a distinct head of equity jurisprudence under which the plaintiff can maintain his action. He paid this money under a mistake; a mistake not induced by or due to any negligence or fault on his part, so far as we cab perceive from the facts alleged in the complaint; and against this mistake, equity has jurisdiction to relieve. It has complete juris-