#### Charles E. Pell et al., Plaintiffs, *v.*The City of New York, Defendant.

(Supreme Court, New York Trial Term,

June, 1900.)

Payment — Duress of law'— Distinction between void and excessive assessment under New York city charter.

A person who, under threat of a sale of his property, pays to the city of New York a void assessment, may recover the payment, and' the charter (L. 1897, eh. 378, § 962) has no application, as section 962' relates only to cases where the illegality of the assessment consists in its being excessive.

Action to recover hack money paid under compulsion of a threatened sale for an illegal assessment.

Walter H. Martin, for plaintiffs.

John Whalen, Corporation Counsel, and Geo. L. Sterling, for defendant.

*665MoAdam, J.

The action, is to recover back from the city the amount of an assessment paid by the plaintiffs for paving Mangin street from Grand to Houston street, on the ground that the assessment was illegally laid. The plaintiffs paid the assessment after a threatened sale of their property. Such a payment is not regarded as voluntary, but the result of legal compulsion. Poth v. Mayor, 151 N. Y. 16. The assessment was confirmed August *7,*1892. The property had been previously assessed for paving the same street, and the expense thereof had been paid by the property owners. The Consolidation Act of 1882 (Chap. 410, § 875) provides that “ Unless it shall be petitioned for by a majority of the owners of the property * * * on the line of the proposed improvement, no assessment shall be imposed for the paving of any street * * * or any part thereof, which street * * * has been once paved and the expense thereof paid by the owners of the adjoining property.” This provision in an amplified form has been re-enacted and made section 948 of the present charter. Ho petition of property owners was made or presented in this instance, and the second assessment was, therefore, without warrant in law. The defendant claims that as the present action was commenced after the charter of the Greater Hew York became "a law, it cannot be maintained, because: *First.*Section 12 of chapter 550 of the Laws of 1880 provides that “ Ho existing provision of law shall enable or permit any court to vacate or reduce any assessment in fact or apparent, hereafter confirmed, •whether void or voidable, on any property for any local improvement in the city of Hew York hereafter completed otherwise than to reduce any such assessment to the extent that the same may be shown, by parties complaining thereof, to have been in fact increased in dollars and cents by reason of fraud or substantial error; and in no event shall that proportion of any such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any causa” *Second.*Said section was substantially re-enacted into the Greater Hew York charter (§ 962), with the following addition thereto: “The provisions of this section shall apply to actions to recover money paid for assessments, aud the amount recovered shall be limited to the excess over the fair value or fair cost of the improvement” Section 12 of chapter 550 of the Laws of 1880, supra, applied to summary applications to the court under the act of 1858 *666(Chap. 338) to vacate or modify assessments for fraud or alleged irregularities, and not to ordinary common-law actions by a taxpayer. Matter of Smith, 99 N. Y. 424. Of course, where a taxpayer invokes the aid of such a special act he takes the remedy as the statute gives it, and can get nothing more. But where an illegal assessment is levied and the property offered for sale thereunder, and the owner, by reason of this compulsion, pays the assessment, such special legislation cannot deprive him of the common-law remedy to recoyer back the money illegally exacted from him. In such case he asks no favor, but demands a right. The provision of the new charter last referred to applies only where the ground of illegality is the excessiveness of the assessment, in which instance the property owner is to pay what the improvement is fairly worth. But where the assessment is wholly void, because none could be legally levied, the owner is neither legally nor equitably bound to pay anything. In this respect the distinction between a total want of jurisdiction in a particular case and an error in its exercise in another, where power exists, is apparent. In addition to these plain principles, section 1614 of the charter expressly provides “ that no right or remedy of any character shall be lost or impaired or affected by this act,” etc. The rights of the parties hereto became fixed before the charter went into effect, and are not impaired by it. There must be judgment in favor of the plaintiffs.

Judgment for plaintiffs.