#### James Hebron, Respondent, *v.*The City of New York, Appellant.

(Supreme Court, Appellate Term, Second Department,

December, 1912.)

City of New York—license fee for private hack stand in — ordinance requiring payment of license fee.

Where a license for a private hack stand in the city of New York was voluntarily paid after the repeal of an ordinance requiring payment of such a fee, it may not be recovered back.

Appeal from a judgment rendered in favor of plaintiff in the Municipal Court, borough of "Brooklyn, third district.

Archibald R. Watson and Frank Julian Price, fo-r appellant.

James R. Finnegan, for respondent.

Putnam, J.

Before 1906, an ordinance of the city of Hew York required a license fee for private hack stands, which were spaces reserved to the licensee, into which no other hackmen could come. But by the new Code of Ordinances for Greater Hew York, approved on Hovember 8, 1906, all previous ordinances were repealed, including this for private hack stands, nevertheless, the plaintiff came down to the bureau of licenses and paid $100 for four stands, in the years 1906, 1907, 1909, and $200 (by two payments), in the year 1908, and received the yearly licenses. It is stated that plaintiff was notified, first in writing, and then by a special officer to renew his licenses, *654or they would be revoked. He sued in May, 19T2, to recover back the $500, alleging that the payments were made-under a mutual mistake of fact, and recovered judgment in the Municipal Court.

The appeal by the city raises two questions — the effect of a mistake of law, also the liability of the city to refund moneys thus paid into the license bureau. Plaintiff urged that his mistake or ignorance as to the repeal of this ordinance . was a mistake of fact, and cites Pitcher v. Turin Plank Road Co., 10 Barb. 436, where it appeared that the Public Roads Act had superseded a prior Turnpike Act, which had imposed a penalty for running into a gate. There a minor had paid to the road company ten dollars in settlement of a supposed penalty for running into a gate, but subsequently, on attaining full age, brought suit to recover it back. While the court spoke of the mistake as to the repeal of the earlier statute as a mistake of fact, it rested its decision upon the ground taken by the County Court, that the agreement settling the liability, being made with a minor, was open to review, and the payment should not bind the infant, but was recoverable back. This case, therefore, is no authority for the respondent in the case at bar.

The policy of all countries that requires public laws to be known, and does not receive the excuse of ignorance of their provisions, obviously applies both to their enactment and their repeal, as otherwise the existence and duration of statutes would be open to the excuse of ignorance by which all legislative acts in individual cases might be set at naught.' The basis for this public policy is the duty laid on all citizens to know the law; so that, when a suitor pleads ignorance of law, he not only would thereby assert an advantage over his fellows, but, by setting up such a breach of duty, asks the court for a decree based on his own negligence in respect to the general obligation to know the law. Kerr Fraud & Mistake, 535; Storrs v. Barker, 6 Johns. Ch. 166.

While the courts in other jurisdictions have at times gone far in relieving against a mistake- of law, such cases have been recognized as exceptions, since on grounds of public policy the rule must remain, *“*Ignorance of the deed may *655excuse, but ignorance of the law excuseth not.” St. Germain Doctor & Student, 79; Newburgh Savings Bank v. Town of Woodbury, 173 N. Y. 55.

The chief question, however, is the liability of the city for these license moneys thus paid in after the repeal of this ordinance. The evidence does not show any duress or restraint, so as to make out legal coercion, or other facts sufficient to make these payments involuntary. Vanderbeck v. City of Rochester, 122 N. Y. 285; Wood v. City of New York, 25 App. Div. 577; Buckley v. City of New York, 30 id. 463. The most that the evidence shows is that the hack-stand moneys were taken under a claim of right.

The liability of municipalities stands on a different footing from other* corporations or persons. Those dealing with a municipality are charged with knowledge of the limitations of the powers of their officers and agents, because set forth in the statutes and municipal charters. Can it be held that the law imposes such a duty upon a municipality to return moneys voluntarily paid under a mistake, that the city can be sued for money had and received ?

In his work on Municipal Corporations, Judge Dillon groups together fines, licenses, and taxes, voluntarily paid, under mistake of law. “ Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license, or fine, cannot without statutory aid, there being no coercion, no ignorance or mistake of facts, but only ignorance or pure mistake of law, be recovered back from the corporation either at law or in equity, even though such tax, license" fee or fine, could not have been legally demanded and enforced.”

Such was the text in the fourth edition (§ 944), repeated with a wealth of citations in the fifth (1911) edition (§ 1621).

This rule, necessary almost for the preservation of municipalities, has been rigidly followed in this state. Phelps v. City of New York, 112 N. Y. 216; Flynn v. Hurd, 118 id. 19; Vanderbeck v. City of Rochester, 122 id. 285. Instead, therefore, of the law imposing on the city, through its oífifnuls, a duty to refund such *656voluntary payments, the law deems the citizen at least equally bound to know his rights, and, if the payment be one that in good conscience the city should not keep, the remedy is to be sought from the legislature. The apparent hardship of the case cannot blind the courts to the effects of departing from a principle essential to the well being of cities at this time when they are already answerable throughout a wide field of civil liabilities. The limits of the powers of municipality require an exception to the common rule, as to actions for money had and received. The principle is applied that the citizen must know his liability and rights before payment to a municipality. Otherwise, it is voluntary, and, if received without right, such a payment is evidence of neglect of the litigant to know his rights, so that his payment cannot be recalled, or recovered back in the courts.

For four years the plaintiff continued to take out his yearly licenses, and .presumably to enjoy the exclusive privilege of having his hacks upon the private stand he had previously -occupied. It was unlike a single erroneous payment o-f a tax or assessment. The ordinances had been in 1907 .assembled in a compilation or code, readily accessible. If after the expiration o-f these four years such a suit could be successfully maintained, then a breach dangerous and far reaching would be made in the safeguards that the law- has placed upon the municipal treasury, for which innovation we find no- support or authority in the decisions of this state.

Judgment is reversed, and a new trial ordered, with costs to abide the event.

Maddox and Blackmar, JJ., concur.

Judgment reversed and new trial ordered, with costs, to abide event,