Defendants are simply saying to the City you collected our taxes unconstitutionally, we want our money back, and the traditional six-year period of limitations should apply. ( Diefenthaler v Mayor, Aldermen Commonalty of City of N.Y., 111 N.Y. 331, 337; Ann., 92 ALR 1360.)
Whether, therefore, the bank was a prior or subsequent mortgagee as a matter of law, it was nothing more than a mortgagee, and could not have been, under the above authorities, an indispensable party. Laches is not a defense to a suit for foreclosure of mortgage, that defense being confined to cases of a character where no statute of limitations is directly applicable and the jurisdiction is not concurrent. Story's Equity Juris. (13th ed.), § 1520; Rankin v. Scott, 12 Wheat. 177; Cross v. Allen, 141 U.S. 528; Met. N. Bank v. Dispatch Co., 149 U.S. 448; Boone v. Pierpont, 28 N.J. Eq. 7; Diefenthaler v. New York, 111 N.Y. 331; Fullwood v. Fullwood, 9 Ch. Div. 176; In re Baker, 20 Ch. Div. 230. A court cannot relegate a litigant to another forum merely because, in its opinion, such course would be more expedient.
If the suit for a call is to be considered as a mere incident to the suit to recover the amount called, it follows that inasmuch as after the stoppage of business the time of making a call was no longer matter of discretion, but was subject to the notice and direction of the law, the lapse of time before making application for such call (the bringing suit therefor) is to be counted in reckoning, under the statute of limitations, whether the suit subsequently brought under such call has been brought in good time. Diefenthaler v. New York City, 111 N.Y. 331; Borst v. Corey, 15 N.Y. 505; Glenn v. Dorsheimer, 23 F. 695; Atchison Topeka Railroad v. Burlingame, 36 Kan. 628; Chalfin v. Moore, 9 B. Mon. 496; S.C. 50 Am.Dec. 525; Pittsburg Connellsville Railroad v. Byers, 32 Penn. St. 22; S.C. 72 Am. Dec. 770; Morrison v. Mullin, 34 Penn. St. 12; Keithler v. Foster, 22 Ohio St. 27; Palmer v. Palmer, 36 Mich. 487. Mr. Wilbur F. Boyle, by special permission of court, also addressed the court for plaintiff in error.
The remedy is available "if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass" ( Miller v Schloss, supra, p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law ( see Roberts v Ely, 113 NY 128; Diefenthaler v Mayor of City of N. Y., 111 NY 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official ( McDonald v Mayor of City of N. Y., 68 NY 23, 29, supra.; see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; and New York R. T. Corp. v City of New York, 275 NY 258, 264, aff'd 303 US 573 [recovery of taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank Trust Co., 264 App Div 212 [action by a county and its treasurer against a depositor bank to recover funds deposited in a self-insurance plan which were fraudulently paid to third parties]).
"* * * although an equitable action may have for its object the accomplishment of the same end as one at law, and be based upon the same cause of action, yet where the remedy sought in equity is a mere incident to the main obligation owing by the defendant, and which is a wholly legal one, the legal limitation applies, because the cause of action is substantially a legal one." Diefenthaler v. Mayor, 111 N.Y. 331, 338, 19 N.E. 48, 51. The essential character of the right sought to be enforced is legal not equitable, even though its enforcement is sought in equity by an accounting.
We reject RECAP's contention that its claim for money had and received is governed by a six-year statute of limitations. To be sure, a taxpayer may recover taxes paid pursuant to a wrongful assessment under that theory and, because such a claim is premised “upon a contractual obligation or liability, express or implied in law or fact,” it is generally governed by a six-year statute of limitations ( Matter of First Natl. City Bank v. City of NY. Fin. Admin., 36 N.Y.2d 87, 93, 365 N.Y.S.2d 493, 324 N.E.2d 861 [19751]; see also Diefenthaler v. Mayor of City of N.Y., 111 N.Y. 331, 337–338, 19 N.E. 48 [1888] ). That limitation period is inapplicable here, however, because RECAP seeks recovery against a school district, which is entitled to rely on Education Law § 3813(2–b). According to section 3813(2–b)—which governs non-tort claims against school districts—“ notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no [such] action or special proceeding shall be commenced against [a school district] ... more than one year after the cause of action arose” (emphasis supplied).
* The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 N.Y. 128; Diefenthaler v Mayor of City of N.Y., 111 N.Y. 331, 337)." (Parsa v State of New York, 64 N.Y.2d, at 148, supra.)
The remedy is available "if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass" ( Miller v Schloss, supra, p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 N.Y. 128; Diefenthaler v Mayor of City of N.Y., 111 N.Y. 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official ( McDonald v Mayor of City of N.Y., 68 N.Y. 23, 29, supra; see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 N.Y.2d 262; and New York R.T. Corp. v City of New York, 275 N.Y. 258, 264, affd 303 U.S. 573 [recovery of taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank Trust Co., 264 App. Div. 212 [action by a county and its treasurer against a depositor bank to recover funds deposited in a self-insurance plan which were fraudulently paid to third parties]). Subdivision 2 of section 9 CTC of the Court of Claims Act gives that court jurisdiction to determine claims for "breach of contract, express or implied".
One method of collateral attack is a plenary action for moneys had and received (see New York R.T. Corp. v. City of New York, 275 N.Y. 258, 264, affd. 303 U.S. 573; Mercury Mach. Importing Corp. v. City of New York, 1 A.D.2d 337, 340-341, revd. on other grounds 3 N.Y.2d 418, 430). Such an action is based, in theory, upon a contractual obligation or liability, express or implied in law or fact, and is controlled only by the six-year Statute of Limitations (see Diefenthaler v. Mayor, 111 N.Y. 331, 337; People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233, 236; see, generally, Tax — Recovery Back — Limitations, Ann., 92 A.L.R. 1360). The bank's causes of action for moneys had and received accrued as it paid under protest the taxes unlawfully and unconstitutionally imposed upon it (see Aetna Ins. Co. v. Mayor, 153 N.Y. 331, 339-340; People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233, 236, supra).
Upon failure of defendants to pay over moneys received by them for plaintiff or moneys so delivered to them by plaintiff, the relation between the parties became that of debtor and creditor and the remedy at law to recover such moneys was ample and resort to equity improper. ( Carr v. Thompson, 87 N.Y. 160, 162; Mills v. Mills, 115 N.Y. 80; Miller v. Wood, 116 N.Y. 351; Wood v. Young, 141 N.Y. 211; Roberts v. Ely, 113 N.Y. 128; Diefenthaler v. Mayor, etc., of N.Y., 111 N.Y. 331.) This conclusion results in disapproval of the conclusion of the Appellate Division that the Statute of Limitations was not a defense to the action and in view of the fact that Herbert Reeves did not appeal renders unnecessary a discussion as to whether or not the findings of fact support the conclusions of law as well as other questions discussed in the briefs.