Dennison v. . City of New York

Per Curiam. The plaintiff’s testator, in 1875, paid an assessment upon his property, in the city of bfew York, for a local street improvement. As the property was advertised for sale, at the time, the payment was involuntary. In the following year, the assessment was annulled by judgment, in an action brought by him for that purpose. This action was not brought to recover the amount paid until the year 1898, or twenty-two years afterwards, and the defendant pleaded, as a defense to its maintenance, the bar of the Statute of Limita *26 tions. The complaint was dismissed upon that ground, at the Special Term, and that determination has been affirmed by the Appellate- Division, in the first department. The'only question is whether the Statute of Limitations is applicable to. such an action and it is the claim of the appellant that it is not, for the reason that chapter 910 of the Laws of 1896 effected its repeal by implication. We are of the opinion that the lapse of six years, from the time when an action might have been brought upon the claim, was a bar to the maintenance of the present action. The cause of action was, simply, to recover back moneys, which the defendant had received from plaintiff’s testator and which it had no right to hold. (Jex v. Mayor, etc., of N. Y., 111 N. Y. 339; Diefenthaler v. Mayor, etc., of N. Y., Ib. 331.) The provision of the act of 1896, relied upon by the appellant, 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 of the time'of such judgment or order annulling such assessment, an action may be maintained to recover such sum with'interest thereon.” The act does not repeal the Statute of Limitations in terms and we do not think that it was intended to do so by implication. It would be most extraordinary legislation, if, as to all claims against the municipality of this nature which the statute had barred, the bar was raised' and the result might, conceivably, be rather startling. But no such thing was intended and no such construction is called for. A statute is not to be deemed repealed by implication; unless the subsequent statute upon the same subject, and which is claimed to have accomplished that result, discloses such an intent clearly upon its face, or is so inconsistent with the former that both cannot stand together. That is not the case with these laws. The act of 1896 is to be reasonably construed, as declaring *27 the rule of law and -as imposing a duty of repayment in a case where an assessment for a local improvement has been annulled for illegality. The action authorized to be brought to recover back the moneys, which the city had received, and which it fails, upon demand, to pay over, must, however, be one that the plaintiff is, otherwise, competent to maintain. That is to say : his claim must not have been barred by the .Statute of Limitations, or by any other special defense to its maintenance. The judgment should be affirmed, with costs. Cullen, Ch. J., Gray, O’Brien, Bartlett, Haight, Yann and Werner, JJ., concur. Judgment affirmed.