Jex v. Mayor of New York

The six years statute of limitation applies to a cause of action to recover back the amount of an assessment for a local improvement paid to the city of New York, where the assessment was void for want of jurisdiction. It seems it is wholly unnecessary in such a case to set aside the assessment, the cause of action is one of a legal nature only. In pleading the statute it is sufficient to aver that more than six years have elapsed since the cause of action accrued; it is not necessary to aver that, in addition to the six years, the thirty days allowed the city by its charter (§ 105, chap, 385, Laws of 1873), to pay the claim after presentation and during which time the claimant is prohibited from bringing suit, has also elapsed.

Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 23, 1888, which reversed an order of Special Term and a judgment entered thereon sustaining a demurrer to the seventh and eighth paragraphs of the defendant’s answer herein. This action was brought to have an assessment upon plaintiff’s premises, in the city of Few York, for a local improvement adjudged invalid, and to recover back the amount thereof. The complaint alleged that the assessment was levied without jurisdiction and was void, and that plaintiff paid the same in ignorance of these facts. The paragraphs of the answer demurred to are as follows: “ Seventh. Further answering, and, as a further and separate defense, the defendants allege that the cause of action contained in said complaint accrued more than six years before the commencement of this action, and that the right to make the demand necessary to maintain said cause of action was. complete more than six years before the commencement of this action. “ Eighth. Furmer answering the said complaint, the defendants allege that more than one year has elapsed since the death of the plaintiffs’ testator before the commencement of this action.” Where, as against other parties, the lapse of six years is sufficient to constitute a defense, against the defendants, six years and thirty days must elapse. (Brehm v. Mayor, etc., 104 N. Y. 186.) The assessment being presumptively valid, an action in equity must first be brought to vacate it; and actions in equity are not governed by the six-year statute of limitations. (Brundage v. Village of Port Chester, 102 N. Y. 498; Jex v. Mayor, etc., 103 id. 541; Scott v. Onderdonk, 14 id. 7; Johnson v. Elwood, 53 id. 431; Marsh v. City of Brooklyn, 59 id. 280.) It is only in the case where a defect is such that it must appear upon the proof that must be made to sustain proceedings under the assessment that no proceeding in equity will be necessary. (Horn v. Town of New Lots, 83 N. Y. 100, 104; Marsh v. City of Brooklyn, 59 id. 280; Hatch v. Buffalo, 38 id. 276; Crook v. Andrews, 40 id. 547; Johnson v. Elwood, 53 id. 435; Allen v. Buffalo, 39 id. 386; Washburne v. Burnham, 63 id. 132-134; Coleman v. Shattuck, 62 id. 348-358.) As the defects, although one of them is jurisdictional in character, are such that they would not appear in proceedings by a purchaser to enforce the lien of. the same, this assessment, though void in fact, is, nevertheless, presumptively valid, and must be vacated before the money paid thereunder can be recovered. (Brundage v. Port Chester, 102 N. Y. 497; Hatch v. Buffalo, 38 id. 276; Hassen v. Rochester, 65 id. 516; Rumsey v. Buffalo, 97 id. 114; Stuart v. Palmer, 74 id. 183; Morris v. Townshend, 102 id. 387; Clark v. Davenport, 95 id. 477; Guest v. City of Brooklyn, 69 id. 506.) This action is governed by the twenty-year statute of limitations. (Mayor, etc., v. Colgate, 12 N. Y. 140; Fisher v. Mayor, etc., 67 id. 74; Code of Civ. Pro. §§ 379, 381.) Section 402 of the Code of Civil Procedure, which takes the place of section 102 of the old Code, simply provides that, under certain circumstances, the time limited may be extended; that is, in case a party dies leaving a cause of action which survives, and the time limited for the commencement of the action has not expired, his representatives shall, in any event, have one year thereafter within which they can commence an action; but, unless the cause of action would have been barred within the last-named period, the section has no effect whatever. (Sandford v. Sandford, 62 N. Y. 553.) The statute of limitations applicable to this case is the six-year statute, and it begins to run at the date of payment. (Brundage v. Village of Port Chester, 31 Hun, 129; 102 N. Y. 494; Parsons v. City of Rochester, 43 Hun, 258; Brehm v. Mayor, etc., 104 N. Y. 186; Jex v. Mayor, etc., 103 id. 536; Hoyt v. Tuthill, 33 Hun, 196; Borst v. Corey, 15 N. Y. 505; Scotty. Stebbins, 27 Hun, 335; 91 N. Y. 605; Clarke v. Dutcher, 9 Cow. 674.) The statute has been correctly pleaded. (104 N. Y. 186; Howell v. Babcock, 24 Wend. 488; Benjamin v. De Groot, 1 Denio, 151; Nelson v. Lounsbery, 3 Barb. 135.) The right of action accrued at the time of payment, and not at the time of filing the claim for the return of the money. (Dickinson v. Mayor, etc., 92 N. Y. 584; Taylor v. Mayor, etc., 82 id. 10.)