#### Isabel S. Tripler, Resp’t, *v.*The Mayor, Etc., of the City of New York, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May 24, 1889.)*

1. Taxes and assessments—Voluntary payment^—When no recovery had.

.In an action brought to recover, the amount paid by the plaintiff to satisfy an assessment inposed upon her property for constructing sewers in the boulevard, in the city of New York, *Held,*that where payment has been voluntary, no recovery can be had; that such payment is deemed voluntary where it is made in a case in which an assessment is void upon its face, and without compulsion or duress, .and a payment made by a mortgagee upon making a loan upon the property out of the money of the mortgagor, is not deemed a payment under compulsion.

2. Same—What necessary to be proved in attackinq assessment.

All that the commissioner of public works attaches to his communication to the assessors other than the assessment list, map and certificate of costs, has no validity as a public record, and forms no part of the assessment list, and what the commissioner therefore says, in transmitting this assessment list and certificate would be no evidence of a fact which might invalidate the assessment, and it would be necessary in attacking the assessment to prove this fact, other than by the admission contained in a letter of the commissioner.

Appeal from judgment entered upon the decision of the •court, after trial without jury.

*G. L.*Sterling, for app’lt; *James A.*Deering, for resp’t.

Yah Brunt, P. J.

This action was brought to recover the amount paid by the plaintiff, to satisfy an assessment imposed upon her property, for constructing sewers in the boulevard.

Questions arising upon cases of this nature have been so frequently to the court of appeals that it is not at all necessary to discuss the principles which are to govern recoveries in cases of this character.

It has been established that where the payment has been voluntary, no recovery can be had. Such payment is deemed to be voluntary where it is made in a case in which an assessment is void upon its face, and without compulsion •or duress, and that a payment made as in the case at bar, by a mortgagee, upon making a loan upon the property out of the moneys of the mortgagor, is not to be deemed a payment under compulsion.

The only question, then, left to be considered is: Was the assessment void upon its face ? It is conceded by both parties that the assessment was void, because the work was done by days’ labor and not by contract, and the only con *245tention is as to whether such defect appears upon the face of the assessment. It is claimed by the appellant that it does, because of the letter of the commissioner of public works accompanying the transmission of the assessment-list, map, and certificate of the cost of the work, to the board of assessors for their action, But the difficulty with this position is that such letter formed no part of the assessment record, and was not at all necessary in order to confer" jurisdiction upon the assessors to act. All that it was necessary that the commissioner of public works should do was to transmit to the assessors the assessment-list, map and certificate of cost, and all that the commissioner .attached to his communication, other than this, had no validity as a public record, and formed no part of the assessment-list. What the commissioner of public works said, therefore, in transmitting this assessment-list and certificate, would be no evidence of the fact, and it would be necessary, in attacking the assessment, to prove this fact other than by the admission contained in the letter of the commissioner of public works.

The assessment was not, therefore, void upon its face, although it did contain this letter, because, upon the production of this assessment-list, the fact that the work has been done by days’ work did not appear by legal evidence.

We think, under this view of the case, therefore, that the assessment was not void upon its face; that the payment was not, therefore, a voluntary one, and that a recovery may be had.

The judgment appealed from must be affirmed, with costs.

Macomber and Bartlett, JJ., concur.