Opinion
1891-02-28
REDMOND v. MAYOR, &c. OF NEW YORK.
D. J. Dean and Wm. L. Sterling ( Wm. H. Clark, counsel to the corporation), for the defendants appellants. James A. Deering, for plaintiffs, respondents.
Appeal from a judgment of the Supreme Court, First Department, General Term, affirming judgment for plaintiff.
John L. Redmond sued to have an assessment on his property for fixing 36th street between 7th and 8th avenues declared void, and money he had paid thereon repaid.
The assessment was confirmed Nov. 2, 1871. The payment made Dec. 15, 1888, and demand for repayment made two days afterward; and (after waiting thirty days under the statute) this suit brought Jan. 23, 1890.
Other particulars appear in the opinion. D. J. Dean and Wm. L. Sterling ( Wm. H. Clark, counsel to the corporation), for the defendants appellants. James A. Deering, for plaintiffs, respondents.
GRAY, J.
This action was brought to have declared void and vacated an assessment for repaving part of Thirty-sixth street in the City of New York, and to recover back the moneys paid in satisfaction thereof. The work was ordered done by an ordinance passed in 1869. The assessment was confirmed in 1871 and its payment was made in 1888. The illegality set up by the plaintiff consisted in the alleged omission to advertise the resolution and ordinance of the common council, as required by the law in such cases.
For the better understanding of the conclusion we have arrived at, that this plaintiff was not entitled to any recovery in the action, because of the circumstances disclosed by the case, a statement of some of the material facts, as contained in the findings of the trial court, becomes important. At the time of the confirmation of the assessment for the repavement of the street in 1871, the owner of the premises in question was James Redmond. He died in 1877, intestate, seized of the premises (which were built upon) and leaving a number of children him surviving. In 1888, eleven years later, his heirs determined to have a partition of their inheritance and agreed to affect it between themselves, without the aid and expense of an action at law. Under their agreement the parcels of land were to be drawn for by lot. The liability of each heir for rents and personalty received, meanwhile, was agreed upon, and also the valuation of each piece of real estate. The Thirty-sixth street parcel, in question, fell to Mrs. Hawlett, a sister. By the agreement she assumed a mortgage already upon it of $7,000, and became bound to repay the sum of upwards of $13,000 for purposes of equalization; in order to make that payment she applied for and obtained a loan of $21,000 from the United States Trust Company; but the lender made it a condition of the loan that this assessment should be cancelled of record; thereupon, it was paid in behalf of all the heirs, who were obliged by their agreement to convey each parcel free of incumbrance; two days after making the payment, however, they presented a claim against the city for the moneys so paid, and payment being refused, this action was commenced.
During all of these seventeen years, which elapsed between the confirmation of the assessment and its payment under the circumstances mentioned, there does not appear to have been any action taken by the municipal authorities in the direction of collection or enforcement; all that was done, as it appears in this record, was the advertisement of the completion of the assessment list by the board of assessors, a transmission of the list to the board of revision, etc., for confirmation, the subsequent confirmation by that body, and the entry in the books of the clerk of the bureau of arrears, in November, 1871. Thereby it undoubtedly appeared as a lien upon the premises affected, but there does not appear to have been any demand of payment, or any process or warrant issued for its collection. Nor do the proofs disclose any excuse for the delay by the plaintiffs in paying the assessment, or in investigating the character of the apparent charge upon their property. Is it conceivable, under the circumstances related, that a cause of action could have accrued in the plaintiff's favor against the municipality? I am not aware of any case which can be deemed to go so far as to warrant such an action in the face of the facts and of the presumptions they support. The theory of such an action is that ex œquo et bono the defendant, having no right to require the payment of the assessment, therefore should not retain the moneys paid by the plaintiff and should restore them upon their demand. To maintain the action, it is essential that it should appear that the payment had been made in ignorance of the invalidity of the assessment, and through some legal coercion, or involuntarily, upon some coercion in fact to prevent the seizure of goods, or the arrest of the persons ( Dillon's Municipal Corp. § 940; Peyser v. Mayor, 70 N. Y. 497;Phelps v. Mayor, 112 Id. 216, 222).
In Peyser v. Mayor, Judge Folger's opinion contains a discussion of the principle upon which actions may be maintained to recover back moneys paid in cases of assessments illegally imposed. It was there said that where assessment proceedings “are regular on their face and on presentation make out a right to have and demand the amount levied and to collect it in due course of law, etc. … unless void on their face, they have the force of a judgment; the party is legally bound to pay and has no lawful mode of resisting. The only remedy is a reversal of the adjudications. Until reversed they give the collector of the tax the right to take and sell goods and the assessment remains a prima facie valid lien upon real estate.” In that case the assessment was imposed in March, 1869, and in October of the same year, it was, on motion, set aside and adjudged to be void. It also appeared that in July the plaintiff received official notice of the confirmation of the assessment and a demand of payment on or before July 27, and that, thereupon, he paid under protest. The difference is very material between that case and this; both in the absence here of the element of a demand by the authorities and in the extraordinary inaction on both sides for seventeen years.
The long established and well recognized general rule on the subject of voluntary payments, is that when made with knowledge of the facts and not induced by the fraud of the other party, they are beyond recall in law. (Brisbare v. Dacres, 5 Taunton, 43; Silliman v. Wing, 7 Hill, 159;Preston v. Boston, 12 Pick. at p. 14).
So, where an assessment is paid, which upon its face carries the notice of its illegality and consequent invalidity and no duress is resorted to for its collection by the authorities, its payment by the property owner would be voluntary in the eye of the law and its restoration denied. (Fleetwood v. City of New York, 2 Sandf. 475; Peyser v. The Mayor, 70 N. Y. 497;Phelps v. The Mayor, 112 N. Y. 216). But the principle upon which such payments are deemed voluntary extend to cases where, without the impress of illegality upon their face, assessments are paid with knowledge, actual or constructive, of the facts which make them invalid claims of the municipality. That should be quite obvious, for the principle underlying the right to compel a restoration of the moneys paid is that the debtor was ignorant of the existence of the facts, which would have precluded his creditor from maintaining his demand at law, or enforcing his lien against his defense. The court should deny a claim for the repayment of moneys in such cases unless it appears in proof that the parties charged with their payment were igno rant of the facts constituting the illegality of the assessments and paid them when demanded and under circumstances exhibiting such good faith in the matter, as to make it appear that they acted under a moral coercion, or else it should be evident that the payment was involuntary and compelled by some duress.
In the present case, conceding the illegality of the assessment proceedings, I think ample reasons exist for denying the relief which the plaintiffs seek. For eleven years after becoming possessed of the property they made no attempt to discharge the lien by payment or suit, and no attempt was made by the city to collect payment. When, for their mutual convenience, and in order to raise moneys to equalize their respective shares in the division of their father's estate, a loan is made, they then find themselves obliged to move in discharge of the lien of the assessment; not because of any demand or action by the municipal authorities, but because the lender has required a clear record of title. When the payment is then made, within two days, practically immediately, the plaintiffs file their claim and institute this action, on the ground that the assessment proceedings were invalidated by reason of the failure to observe a legal requirement. It is true that the trial judge found that at the time of payment the plaintiffs believed the assessment legal, and were ignorant of the facts constituting its invalidity; but the finding was excepted to, and I do not think there is evidence sufficient to sustain it. The finding could only have been based on the testimony of one of the plaintiffs, who testified to having paid the assessment, and that she did so thinking it was legal. It is difficult to see how the evidence of this witness could conclusively establish ignorance of the facts as to the invalidity of the assessment on the part of the other plaintiffs, cotenants with her of undivided interests in the property. She did not manage the estate; it was her sister who had acquired the property, and the mother of the plaintiffs had been the administratrix of the estate. The witness may well have been herself ignorant of the facts upon which the claim was based, which was immediately made on behalf of the plaintiffs, and still the others, or some of them, may have been possessed of the requisite information. And the knowledge by any of them in such a matter, under the circumstances, should be chargeable to all. So I consider that the evidence, when considered, not by its weight, but in its nature, to be wholly insufficient to support so broad and material a finding. The presumption is decidedly against the fact that these plaintiffs believed the assessment valid and incontestable, whether we view their action in claiming back the moneys, immediately after their payment, or whether we view their conduct in neglecting to pay, during all the years of their possession, and until it became desirable to borrow some money on the property. The irresistible inference from the facts was that the invalidity of the assessment lien was recognized from the failure of the city to take any step to demand or to enforce collection of it in the usual statutory methods, and that the plaintiffs knew its infirmity, and, in paying its amount, to permit the loan to be then perfected, relied upon their ability to recover it back by a suit. The payment was not under coercion, in fact, inasmuch as there was no compulsion, as by warrant or threatened seizure (Phelps v. The Mayor, 112 N. Y. 216). There was no coercion in law, because that would exist only when, the assessment having been confirmed, payment thereof had been demanded by the authorities, and seemed to be legally and rightfully due them (Peyser v. The Mayor, supra).
Such an action, though at law, is, nevertheless, equitable in its nature, and relief is granted in adjudging a repayment of moneys paid under illegal assessments, on the ground that to permit their retention would be against equity and good conscience ( Dillon's Municipal Corps. § 939). Where the payment has been made under some actual compulsion, in fact or in law, as where it is made upon demand in ignorance of the facts, and because to all appearances the assessment is on its face regular and valid, the party is entitled to relief. But if the proof is insufficient to furnish ground for a finding of ignorance, and the circumstances disclosed by the case repel the inference of any coercion, in law or in fact, the relief should be denied. The question which is presented to the court in such an action, is whether on the facts the city ought to keep the moneys, and though the action may be in form ex contractu it is not based upon any contract obligation, but rather upon the moral aspect of the matter. Though in assumpsit, the action depends upon general principles of equity for the maintenance of the plaintiffs' claim to the moneys (Kingston Bank v. Eltinge, 66 N. Y. 625; Chapman v. Forbes, decided by us December, 1890),
it is not a matter of strict legal right in the plaintiffs and the answer to the question turns upon the facts and the inference they justify and support. The rules which would govern, if the action were between individuals, should not be stretched because the defendant is a municipal corporation. It is equally entitled to the equitable considerations, which would prevail in favor of the natural person. It should not be lost sight of that in this species of actions the real merits are not always with the parties who bring them, and in this particular case they probably are with the city. The basis of the claim is usually the failure to create a charge upon the property owner assessed, from the disregard, or omission, of some more or less essential legal requirement, as, for instance, in this case, the omission to advertise in newspapers, validly designated, the resolution and ordinance of the common council providing for the doing of the work. The work may have been properly done, but the party charged for its benefits endeavors to escape his assessment through some technical mistake committed by the authorities, and to spread his burden upon the city at large.
Reported in 123 N. Y. 532.
The cases in the reports, where the facts are recited upon which the opinion is predicated, show either coercion in fact or in law by the authorities. In the case of Peyser v. The Mayor ( supra), relied upon by the respondent, it appeared that the plaintiff received official notice and a demand of payment on or before a certain date named, and it was complied with. Judge FOLGER in his opinion, in that case, in his reference to the N. Y. & H. R. R. Co. v. Marsh (12 N. Y. 308), uses this significant language: “There is no clashing here with the case. … Besides, in that case, the collector did not assert a right to seize property then and there. There was no taking, nor imminent danger thereof.”
The conclusion to which we are brought, by the consideration of this case, is that the great lapse of time during which the assessment remained without demand, or steps taken to collect it; the want of diligence in the parties to pay it, or to move for its vacation, the fact that when payment is finally made it is made without any coercion and only for purposes of convenience and accommodation, and that immediately thereupon a claim is filed and as soon as possible placed in suit, for a restoration of the moneys on the ground of the illegality of the proceedings leading to assessment; that all these are circumstances which should have precluded the court from granting the relief demanded. Added to these equitable considerations, is the utter failure of the proofs to establish ignorance of the fact of invalidity on the part of the plaintiffs, or to furnish that explanation of their conduct which every such case should contain as the basis for granting relief.
The judgment should be reversed and a new trial ordered; costs to abide the event. All the judges concurred.
NOTE ON THE RIGHT TO RECOVER BACK MONEY PAID ON AN ILLEGAL ASSESSMENT.
It has for some time been assumed to be the result of the Peyser case that the existence of an assessment void not on its face, but voidable by reason of facts extrinsic to the record, is in itself a sufficient compulsion to pay, to enable one who pays in ignorance of the vitiating facts to recover the money back as paid under compulsion, provided the assessment be adjudged void.
The cases in the text pursue the analysis of the subject a step further and overrule the cases below which had so held (case 1), and establish the rule that the existence of such an assessment is not compulsion, nor is the ordinary published notice to pay before interest begins to run, that notice not being complied with--even where the person paying finds it necessary to pay in order to satisfy a purchaser or lender that the title is clear.
The soundness of the rule is made apparent in another way by recurring to the general principle that a person cannot create a cause of action in his own favor by his own act. The assessment is not the cause of action; the owner does not pay in the idea that he is reserving or saving a cause of action to recover back the money, for no such cause of action existed before the payment. It is the payment that creates the cause of action; and the underlying principle of the cases in the text appears to be that the payment does not give rise to this cause of action unless it was exacted by the attempt of the city in some form to enforce the assessment.
The result of the cases on the application of this principle may be stated briefly as follows:
Any step to enforce the assessment, such as a threat of sale made by a collector with warrant (case 5), or the advertisement of the property by the city for sale (case 6), or the direction of the court on a judicial sale, that the officer making the sale pay all assessments (case 7), or allow the purchaser to deduct from the price sums paid by him in discharge of assessments (case 8), are a sufficient necessity put upon the owner to pay to enable him to recover back the payment as not voluntary.
Whether the usual notice demanding payment, and imposing interest by way of penalty for non-payment within a specified time is a step to enforce the assessment within this rule, has not been specially determined so far as I am aware.
If there is no step towards enforcement by the city or by the court on a judicial sale, the fact that a proposing purchaser or lender on mortgage objects to take title until the apparent lien is removed, does not constitute a necessity to pay, within the rule; but if such a step toward enforcement is taken, the fact that the objection of a purchaser or lender is the immediate occasion of making the payment at the particular time it was made, does not impair the fact that the payment was not voluntary (case 5 and cases in the text).
If the payment is not made to prevent steps to enforce the lien, but such steps are allowed to go forward, and the property is sold for non-payment of the assessment, payment to the city to redeem the property from the sale, is a compulsory payment within the rule (case 8); and while the money so paid remains in the hands of the city it may be recovered back notwithstanding the objection of the purchaser (case 8); but after the redemption money has been paid over by the city to such purchaser, the city is no longer liable, at least to an action for money had and received or paid under coercion; but plaintiff's remedy so far as recovering back the money is concerned must be sought against the purchaser who has received it (case 9).
The assessment not being void on its face, an adjudication that it is void is essential, and an action merely to recover back the money will not lie unless such an adjudication be had.
An action in equity, however, will lie to declare the assessment void and recover back the money, by one judgment; (case 15). And where the action is thus framed the fact that the assessment was void on its face so that the equitable relief is not necessary does not prevent recovering the money judgment (case 16).
Where the action is simply for the money recovery, an adjudication that the assessment was void, had in an action between the city and other parties is sufficient (case 5); but in such case the adjudication avails merely as evidence, (case 16). If the proceedings were taken by the present plaintiff or those in privity with him so that the adjudication of invalidity is directly between him or them and the city, it is not material that the payment was made (case 12); or the action brought (case 11), before the proceedings were commenced. But on general principles the propriety of allowing a recovery if the action for mere money recovery was brought before the adjudication was had, may depend on the adjudication being set up by supplemental pleading (see note on p. 19 of this vol.)
It is the payment that sets the statute of limitations running, subject to the qualification resulting from the rule requiring demand and delay before suit against a municipal corporation (see note in 24 Abb. N. C. 292). Neither the demand before suit (Brehm v. Mayor, etc. of N. Y. 104 N. Y. 186), nor the adjudication avoiding the assessment (Parsons v. City of Rochester, 43 Hun. 258), are necessarily material to the question of the statute of limitations. If the payment is not an actual payment, but the withholding and applying money previously due from the City to the owner, the cause of action is deemed to have accrued when the moneys were originally due, and the withholding does not make a new point at which the statute of limitations can attach.
Notes of Cases.
1. The case in the text overrules Pooley v. City of Buffalo, 4 N. Y. Supp. 450; s. c., 17 State Rep. 363, and in part Sands v. Mayor, etc., of N. Y. 13 State Rep. 61.
2. What is void on its face.] Wilcox v. Mayor, etc. of N. Y., 53 Super. Ct. 436. An assessment made when the common council had not passed an ordinance for the doing of the work, is void on its face within the rule that a payment voluntarily made cannot be recovered back. [In this case no demand or step to enforce payment had been made other than the usual notice published, that payment before a specified day would be without interest and thereafter with interest.]
3. To the same effect as to lack of ordinance.] Sands v. Mayor, etc. of N. Y., 13 State Rep. 61.
Here it was stated on the face of the assessment list that the discretion was given to the Commissioner of Public Works to have the work done by days' work and not by contract,-- held that the assessment was void on its face.
4. In Pooley v. City of Buffalo, 4 N. Y. Supp. 450; s. c., 17 State Rep. 363, it was held that neglect of the common council to comply with the statutory provisions of the charter in proceedings taken to make the assessment, did not render the assessment void on its face within the rule.
5. Bruecher v. Village of Port Chester, 17 Abb. N. C. 361; s. c., 101 N. Y. 240; aff'g 31 Hun, 550. If the owner pays an assessment which is not void on its face, on the threat of a tax collector holding a warrant to sell for non-payment, he may recover back the money.
[Here the main question was whether the assessment must have been first adjudged void, and the court of appeals held (contrary to the trial court) that it was enough that it had been adjudged void in proceedings between the city and third persons whose property was affected by the same assessment. But it was also held that demand was not necessary before suit.
In this case too it appeared by the complaint that plaintiff paid because he wished to convey and was required to give clear title. This case with that in the text together show that it is not the acting on an immediate motive to clear title that precludes recovery, but the paying without being required to by the city; and that when not so required by the city, waiting until such occasion, and then paying merely to clear title, evidences the voluntary character of the payment.]
6. In Burke v. Mayor, etc. of N. Y., 25 N. Y. Weekly Dig. 502, it appeared by the complaint that the assessment was void for extrinsic facts, and that it had been declared void by the court of appeals in proceedings affecting other property; that the city had advertised plaintiff's property for sale on account of the non-payment of the assessment, and that plaintiff had paid the assessment under compulsion, supposing it to be legal and valid. The relief demanded was that the assessment be declared a nullity, and that plaintiff have judgment for recovery of the money he had paid.-- Held, sufficient, that as plaintiff could recover the money demurrer should not be sustained for the having asked to annul the assessment, for being wholly void, it could be disregarded, and the money recovered.
7. Brehm v. Mayor, etc. of N. Y., 104 N. Y. 186. Here in foreclosure, the referee to sell was directed to pay all assessments out of the price; and an assessment so paid was subsequently vacated on the application of the former owner.-- Held, that its payment was equivalent to a collection under process o law, for until vacated, the court had power to direct payment of the assessment, and its validity could not be determined in the foreclosure suit.
8. Remsen v. Wheeler, 105 N. Y. 573. Here adults and infants by guardian joined in a sale, the order of court as to the infant's interest, as well as the contract of the adults stipulating to except and reserve out of the consideration to be paid by the purchaser such sums as he should pay in discharging taxes, assessments, etc., in order to free the premises,--and the purchaser paid the illegal assessments for which the lands had been sold, and deducted the amount from his purchase money.-- Held, that even if the purchaser under the terms of the order was not strictly authorized to make the payment, yet as the owners had allowed him to make it and ratified his so doing, their remedy was against the city and not against the purchaser.
In this case one who had bought the property at a sale for nonpayment of such illegal assessment was made a defendant as claiming to receive the money from the city.-- Held, that so long as the money remained in the hands of the city it could not be deemed to have been paid to such purchaser, and as the city did not resist the plaintiff's right of recovery, such purchaser under the void sale could not claim that there had been a voluntary payment to him.
9. In Wallace v. Mayor, etc. of N. Y., 52 Hun, 587, the money received by the city in redemption from a sale under an illegal assessment had been paid over to the purchaser at that sale.-- Held, that the city was no longer liable, though it would have been otherwise while the money remained in the possession and under the control of the city.
10. Sands v. Mayor, etc. of N. Y., 13 State Rep. 61. Here the owner, on conveying, and having knowledge of the invalidity of the assessment, covenanted with his grantee to pay it or have it vacated.-- Held, that his paying it to acquit himself of that obligation, was voluntary.
11. Pursell v. Mayor, etc., of N. Y., 85 N. Y. 330. Besides the points stated in the case in the text the court held that it was not essential that the assessment should have been set aside before suit brought to recover back the money paid, if proceedings had been commenced and were pending by the owner when the payment by the owner or by one standing in privity with him, as hereby a tenant who had covenanted to pay all assessments, was made.
12. Jones v. Mayor, 37 Hun, 513.-- Held, that although payment of an assessment is good ground for refusing to sustain proceedings subsequently commenced to vacate it, such payment does not take away jurisdiction to vacate; and if the proceedings to vacate are not resisted on that ground, a final vacation not appealed from, will avail to sustain the action to recover back the payment.
13. Sands v. Mayor, etc. of N. Y., 13 State Rep. 61. Here plaintiff owning a number of lots, procured an assessment to be vacated; but the order entered by clerical or other mistake omitted to mention two of the lots.-- Held, that this did not give a right to equitable relief, for equity does not relieve against a mistake or negligence of counsel in legal proceedings.
14. Who may sue. Schultze v. Mayor, etc., of N. Y., 103 N. Y. 307. Whoever has been “aggrieved” by enforcement of the payment of an illegal assessment, although he be not the owner, is entitled to maintain the action.
15. Frusburgh v. Mayor, etc. of N. Y., 87 N. Y. 453. An owner who in ignorance has paid an assessment not void on its face, but illegal even in part by reason of extrinsic facts, may maintain an action to set it aside as to the illegal part, and to recover back at the same time the payment as to such illegal part.
[The importance of this decision is in its allowing an action in equity for both purposes, although previous cases had settled the rule that an action for the money paid could not be brought till after the assessment had been vacated. Followed in Delano v. Mayor, etc., 32 Hun, 144.]
This decision brought the rule into harmony with the general principle under the codes that legal and equitable relief can be had in the same action, where the equitable relief is a necessary preliminary to the legal relief, and there is no incongruity as to parties, etc.
16. Parsons v. City of Rochester, 43 Hun, 258. So far as it holds that a voidable assessment constituting an apparent cloud is a sufficient compulsion, this case is overruled by the cases in the text.
But it was also here held that the right of action accrues when the money is paid, although the assessment has not been set aside; and that the fact that a suit to which neither the present plaintiff nor the owner to whom he succeeded was a party was pending, did not postpone the accrual of the cause of action till final judgment vacating the assessment. Such final judgment was competent evidence of the invalidity of the assessment (see dictum to contrary in Pursell v. Mayor), but the existence of the action did not dispense with the necessity of the present plaintiff suing for his money, and the assessment being set aside, or being proceeded against by him before the statute of limitations had barred his claim.
17. Brundage v. Village of Portchester, 102 N. Y. 494; aff'g 31 Hun, 129. If the complaint alleges that the assessment has been vacated and sues to recover back the money, it is an action of a legal nature barred in six years.
Pelton v. Bemis ( Ohio, 1886), 4 Northeast. Rep. 714. When, for the purpose of collection, an assessment is divided into two or more installments, payable annually or otherwise, the limitation of time in which the action can be brought, as provided in said section, begins to run against such installment from the time of its collection, and not from the collection of the last installment.
19. Manley v. Mayor, etc. of N. Y., 24 N. Y. Weekly Dig. 95. The remedy to recover back taxes wrongfully levied as distinguished from assessments for local improvements, is by special proceedings under the tax laws not by action. See note in 24 Abb. N. C. 136, on the incidence of taxation, and in 20 Id. 49, on certiorari to review taxation.