Redmond v. Mayor of New York

Ingraham, J.

It is, I think, clear that the ordinance of the common council providing for the work and assessment in question, and the assessment im.posed under the provisions thereof, were void under the rule adopted by the court of appeals in Re Burmeister, 76 N. Y. 177 , and that such invalidity did not appear upon the face of the assessment list. The defendant could not therefore have enforced the assessment. It is also clear that if the plaintifl had been compelled to pay the assessment, and did pay it without knowledge of its illegality, plaintifl would be entitled to recover back the amount so paid in this action. Jex v. Mayor, etc., 103 N. Y. 536 , 9 N. E. Rep. 39; Tripler v. Mayor, etc., 6 N. Y. Supp. 48 . It is claimed on behalf of the defendant that the payment was voluntary, and for that reason could not be recovered back. I am, however, unable to find in this case any facts that would make the payment of the assessment a voluntary one. The person who paid the assessment expressly testified that she liad no knowledge that the assessment was void, and that its payment was necessary because of the refusal of a trust ■company to make a loan upon the property until the assessment was paid. There is nothing to charge either the plaintifl or his predecessors in title witli knowledge of the facts' that rendered the assessment void. The payment •was not therefore a voluntary one, and the plaintiff was entitled to recover. Tripler v. Mayor, etc., 6 N. Y. Supp. 48 . The judgment should be affirmed, with costs.