Peyser v. Mayor of New York

DANIELS, J.: The first conclusion adopted in this case was, that Mr. Justice Beady was right in his views of it, and that the plaintiff should have been allowed to recover. But that is believed to be unsound, for the reason that the money was paid for the purpose of discharging the assessment, without any mistake concerning the facts on which it depended for its validity. The plaintiff was subjected to no compulsion requiring the payment to be made by him, but it was made voluntarily. And when that appears to be the case, and the payment was not induced by some mistake of fact, it cannot afterward be recovered back. (Fleetwood v. Mayor, etc., 2 Sandf., 475 ; Wyman v. Farnsworth, 3 Barb., 369 ; Sandford v. Mayor, 33 id., 147; Commercial Bank of Rochester v. City of Rochester, 42 id., 488 ; Forbes v. Appleton, 5 Cush., 117.) The rule upon this subject has been recently stated in terms specially applicable to a case like the present one, in the following words: “If he voluntarily yielded to the claim, and there was no duress of person or goods, or fraud on the part of the creditor, the payment concludes him, and he could not avoid the force or effect of the act of pay [416] ment as an admission, or reserve the right to draw the matter into controversy thereafter by paying under protest. The act of payment was voluntary, and if he intended to litigate the right, he was bound at the time, to take his position and resist the demand made upon him.” (Flower v. Lance, 59 N. Y., 603, 610; Duncan v. Bellin, 60 id., 151.) The present case differs from that of The Bank of Commonwealth v. Mayor (43 N. Y., 184), in the circumstance that while the proceedings there were pending upon certiorari, a warrant was issued for the collection of the tax, and the defendant is stated to have collected it by its officers by menace and compulsion. And also from Preston v. Boston (12 Pick., 7), where it was paid to avoid a warrant which was to be issued for its collection by a certain specified day. No authority has gone further than that case in the way of maintaining such an action; and the present one falls very far short of it, so far as the feature of compulsion is concerned. The evidence showed that notice alone was sent to the plaintiff that the assessment had been made; that payment was expected before thé 27th day of July, 1869, and if not paid on or before that day, interest at the rate of seven per cent would be charged upon it from the date of its confirmation. Upon that the plaintiff paid it without even a menace of process or the seizure of his property, insisting, at the time, that the proceedings had been irregularly carried on, and that others were pending or about to be taken to set the assessment aside. And in reply he was informed by the officer receiving payment that he could pay or not, just as he chose. No authority has yet proceeded so far as to sanction the right to recover back money paid under such circumstances, even after the assessment itself has been set aside, as this one was afterward on the plaintiff’s application. The claim has no equities in its favor which should induce or justify such an extension of the existing rule on this subject, as would warrant the courts in sustaining it. The plaintiff’s property was improved and advanced in value by the pavement, for the expense of which the assessment was made ; and that benefit he will retain, without compensation for it, if the payment made for it should be recovered back, unless a re-assessment should be made for it, as in that case it ought to be under the power conferred by chapter 338 of the Laws of 1858, section 5. [417] The defect for which the proceedings were set aside, did not consist in any omission to perform the work for which the assessment was required to be paid, but it was alleged to be an irregularity arising out of the inclusion of the cost of work done that was not authorized by the order in pursuance of which the assessment was laid. It is to be presumed, from the evidence, that the plaintiff’s property received in its improvement a reasonable equivalent for the amount paid by him; and that no real injustice will be sustained by him through the failure of his action to recover back the money he has paid for it. The judgment in the case should be affirmed. Davis, P. J., concurred.