#### Theron E. Parsons, as Adm’r, with will annexed, etc., Resp’t, *v.*City of Rochester, Appl’t.

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

*Filed January,*1887.)

1. Taxes and Assessments — When payment made under compulsion MAY BE RECOVERED BACK.

Where an assessment was paid, in which the proceedings imposing the assessment were valid on their face and extrinsic evidence was necessary to establish their invalidity. *Held,*that the reversal of the assessment and setting the same aside as void is conclusive evidence that the money was obtained from the person paying the assessment without right. That as the assessment was valid on its face, the payment of the tax was compulsory in a legal sense and may be recovered back by the parties coerced to make the payment.

2. Same —When right oe action to recover back accrued — Statute-op LIMITATIONS.

As soon as the money was paid a right of action accrued in the plaintiff’s *468favor entitling him to a judgment declaring tlie assessment void, and recovering back the money which had been paid. The statute of limitations began to run from such payment. A void assessment, which created an apparent lien on the land assessed, was the fact which gave a right of action in favor of each and every of the respective land owners affected thereby, and not the decision in an action declaring the assessment void. 'Whether the action to recover must be commeneed within six or ten years. *Quaere.*

AN appeal by the defendant from a judgment entered in the Monroe county court affirming a judgment of the municipal court of the city of Rochester for the sum of $265.80 damages, and $27.38 costs, in favor of the plaintiff against the defendant.

In the year 1865, the common council of the city of Rochester instituted proceedings to improve Oak street, and for the purpose of raising money to meet the necessary expenses, they were authorized by the charter to assess the same upon the several parcels of land abutting thereon.

The deceased Lauren Parsons, who died prior to the instituting of these proceedings, was the - owner of one of the parcels and at the time the improvements were made one of the parcels belonged to his estate and was assessed by the common council, $324.72. In August, 1865, his personal representative paid on and towards the tax $108.24. After such payment, but when is not disclosed by the case, William E. Hassan and others, whose lands were assessed for the improvement, commenced an action in the supreme court to set aside the assessment as invalid, and a final decree was entered therein on the ninth of September, 1882, setting aside and declaring the said assessment void for the reason that all the lands benefited by the improvement were not assessed as required by the provisions of the city charter. Neither the personal representatives of the deceased or his heirs-at-law were parties to that action. At the time of the commencement of tins action the premises had been alienated and were owned by one James Crouch. In May, 1885, this action was commenced in the municipal court to recoyer the portion of the assessment paid by the personal representative of the deceased. No further statement of fact is necessary to an understanding of the question discussed in the opinion.

*I Van*Powers, for appl’t; *Charles H*Kingsbury,.for resp’t.

Barker, J.

The proceedings of the common council in levying the tax for the improvement of Oak street were illegal and void, for the reason that a parcel of land owned by the State and benefited by the improvement was not assessed with the other lands benefited. The case of *Hassan et al.*v *The City of Rochester*(67 N. Y., 528), was prosecuted for the purpose of contesting the validity of the assessment and the same was declared void for the reason stated. It was also held in the same case that the proceedings imposing the assessment were regular and valid on their face and that extrinsic evidence was neces*469sary to establish their invalidity. We shall assume in disposing of this appeal, that the money paid on and towards the assessment by the personal representative of the deceased was paid by him in the line of Ms duty, and was a proper and legitimate use of funds in his hands .belonging to the estate of Parsons. TMs point being conceded then it cannot be denied but that the money paid, *ex cequo et*bono, belongs to the plaintiff in representative capacity, and was held by the defendant for his use. The reversal of the assessment and setting the same aside as void, is conclusive evidence that the money was obtained from the estate of the deceased without right. As the assessment was valid on its face, the payment of the tax was compulsory in a legal sense and may be recovered bach by the parties coerced to make the payment. Both of these propositions were affirmed in *Peyser*v. *the Mayor*(70 N. Y., 497). It is unnecessary to reiterate the reasons upon which these rules are founded, as they are fully and comprehensively stated in the opinion of Mr. Justice Folger, in *Strusburgh*v. Mayor, *etc.,*8 7 N. Y., 452. These well established principles were applied to the facts in that case.

We are, however, of the opinion that the plaintiff hasTost his right of action by laches on his part and the statute of limitations bars a recovery. As soon as the money was paid, a right of action accrued in the plaintiff’s favor entitlhig him to a judgment declaring the assessment void and recovering back the money winch had been paid on and towards the assessment. Nearly twenty years elapsed after the payment and before the commencement of this action. Nothing intervened during this long period to arrest the running of the statute. The personal representative of Parsons was not a party to the Hassan suit. He had no control over the same and was not concluded by the judgments Nor did the pendency of that action prevent the prosecution of one by the plaintiff to recover back the money. Every person whose lands were assessed could have maintained an individual action to vacate the same as invalid and if he had paid the assessment to recover back the money in the action, *Strusburgh*v. Mayor, 87 N. Y., 452. The decree in the Hassan suit vacating the assessment was conclusive evidence of its invalidity, and was properly reviewed in evidence for that purpose.

•The respondent’s position that he had no right of action until the final decree in that action was entered, in the year 1882, is utterly fallacious. That decree did not create a right of action in any one. The void assessment which created an apparent lien on the land assessed was the fact wMeh gave a right of action to the plaintiff in that action and also0a like one in favor of all and each of the respective land owners.

The decree in the Hassan suit so far as the other land owners *470were concerned became evidence which they might use to prove that the tax was illegal. The provisions of the statute of limitations are very comprehensive and include actions of this character and it is unnecessary to determine whether it belongs to the class which must be prosecuted within the six or ten years after the cause of action arose. In *Brundage*v. *The Village of*Portchester, 31 Hun, 129, the precise point was considered and it was held that as soon as an invalid tax was involuntarily paid for the improvement of a public street, a right of action accrued and the statute of limitations barred a recovery after a period of six years.

The judgment of the county court and of the municipal court are both reversed with costs.

Smith, Haight and Bradley, JJ., concur.