Betz v. City of New York

Gaynor, J.: By chapter 379 of the Laws of 1899, which went into effect April 21, 1899, a small part of the territory of the Borough of Queens, City of New York, was detached from the city and made a part of the adjoining Town of Hempstead in the County of Nassau. Nevertheless, in levying the annual tax of the city for that year in the following August it was included by mistake. On October 2, 1899, the plaintiff’s agent, paid the amount thus: set against her property to the receiver of taxes of the city. Being in doubt whether he had to pay taxes on the property in the city of in the Town of Hempstead — i. e., whether the property was within the limits of the former or of the latter — he went to the office of the said receiver in the Borough of Queens and inquired. ' The person •in charge informed him that they were payable to the city, and made out and gave him a bill therefor on which the land was described by lot, block and ward numbers as in the Borough of [92] Queens. This was a distinct representation that the land was in the city. He paid the bill relying upon its accuracy. The payment was made under a mutual mistake of fact. The mistake originated with the city’s officials. They included the land in the city’s tax books as a part of the city’s territory and extended a tax against it, all by mistake. The plaintiff’s agent united in their mistake, being encouraged and confirmed in it by the statement to him at the tax receiver’s office and by the tax bill, and paid the tax. Bor the city to keep the amount paid is wholly unjustifiable from any moral standpoint. An individual who should try to do the like would be deemed a dishonest man. The rule stated .in numerous decisions, that payment without coercion of a tax or assessment (1) which is void on its face, but not known by the payor to be void, or (2) of a tax or assessment which is void, but not void on its face, with knowledge by the payor of facts dehors which make it void, is not recoverable back, has no application to the present case. Such payments are. technically called voluntary payments. The payment in this case does not come under that head at all. It was voluntary in the large sense, but is not within the legal definition of what are termed voluntary payments. In the case of payment without coercion of a tax or assessment void on its face as matter of law, the conclusive legal presumption that every one knows the law, regardless of whether that' be the truth as matter of fact or not in the particular case, makes the payment a voluntary one, i. e., a payment made with knowledge that the tax or assessment is void. In the case of like payment of a tax or assessment not void on its. face, knowledge at the time by the payor of facts dehors which make it. void, also makes the payment a voluntary one, i. e., a payment made with knowledge that the tax or assessment is void. In each case the knowledge that the tax or assessment is void is the basis on which the payment is declared to be a voluntary one.' But where the facts dehors which make it.void are not known to the payor, such basis does not exist. ■ There the payment is not voluntary, for it can be sueli only when made with knowledge, either presumed or actual, that the levy is void. Instead of being made in the present case with knowledge of the fact that the tax was void, it was made and received under a mutual mistake of a fact on which the validity [93] of the tax depended, and money so paid is always' recoverable back (Mowatt v. Wright, 1 Wend. 355 ; Pitcher v. Turin Plank Road Co., 10 Barb. 436; Thompson v. Otis, 42 id. 461; Kingston Bank v. Eltinge, 40 N. Y. 391; Vanderbeck v. City of Rochester, 122 id. 285 ; Davis v. Kling, 77 Hun, 598) The judgment should be affirmed. Hirschberg, P.. J., and Jenks, J., concurred ; Hooker, J.', read for reversal, with whom Miller, J., concurred.