Union Bank v. Mayor of New York

By the Court, Geo. G. Barnard, P. J.

The payment was voluntary; There is no case permitting a recovery back of' money paid under circumstances like those disclosed by the complaint. ■ A competent authority, and having jurisdiction over the subject of assessment, for *183 purposes of taxation, and over the plaintiffs’ property, did assess the plaintiffs for personal, property. The plaintiffs complained, and applied to the courts for redress. Before the final decision in the Court of Appeals, the officer having charge of the collection of taxes gave a notice, doubtless as required by law, to the plaintiffs, requiring payment, or that, in the event of non-payment, a warrant would be issued to collect the same. The plaintiffs then pay the assessment. There was no warrant—no seizure— no threatened seizure—no payment of money to free their property from the possession of another—no ignorance of the facts. It was a pure, voluntary payment, and no action will lie to recover the same hack. I think the action cannot be maintained if payment was coercive. The action is the old action for money had and received. It existed and was upheld in all cases where a defendant obtained possession of the plaintiff’s money, which, in justice and equity, could not be retained. A receipt of the money, and a lack of legal right to retain it, were both necessary in the action. Jurisdiction to impose and collect taxes are established and regulated by state authority. Minute provision is made for the various steps necessary to be taken by the several officers, and the money received is finally applied by state law. In every city the tax is made up for three separate purposes. One part thereof is destined for the state itself; one part for the county; and one part for the city. The city has no power to add to, or take from, the tax books, and no control whatever over the receiver of taxes. The city has had from the chamberlain its portion of taxes raised, but so also have the state and county. Who 'is chargeable with the plaintiffs’ money? Who had it? Who received it? Who retains it, against equity and good conscience, from the plaintiffs ? The city, for its purposes, has received less than a third of the taxes raised. I cannot see that the city of Hew *184 York has either imposed an illegal taxon the plaintiffs, or received the proceeds of an illegal tax collected from the plaintiffs.

[New York General Term, January 6, 1868.

Geo. G. Barnard, Ingraham and Sutherland, Justices.

The judgment should, therefore, be affirmed, with costs.