#### S. Marie Brehm, Admrx., Resp’t, *v.*Mayor Aldermen and Commonalty of the City of New York, Appl’ts.1

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Taxes and assessments — Voro assessment paid by referee pursuant TO JUDGMENT OF FORECLOSURE CAN BE RECOVERED BACK.

The land upon -which the assessment in question was an apparent lien was owned by the plaintiff’s intestate and was subject to a mortgage. A judgment was entered for the foreclosure of this mortgage and the sale of the mortgaged premises by a referee, which judgment directed that all taxes and assessments upon the mortgaged premises be paid out of the proceeds of the sale. The referee out of the proceeds of the sale paid the assessment in question June 6th, 1871. On application of plaintiff’s intestate the assessment was vacated December 4th, 1871. This action was brought De*662cember 18£h, 187V, *Held,*that the assessment having been paid out of the1 funds belonging to him by order of the court it was equivalent to a collection under process of law, and that on the subsequent vacating of the assessment, he was entitled to recover the money so paid.

2. Same — Judgment in eoreclosube need not be set aside.

*Held,*that the judgment of foreclosure was not the adjudication which created the apparent lien nor the authority upon which the right of the city as between it and the property or its owner, to collect the assessment depended. That it established no right as between them, and there was consequently no necessity of setting it aside for the purpose of entitling the-plaintiff to recover the money paid.

3. Statute op limitations — Pbesentations op claims against New Yobk City — Commencement op action — Laws 1873, chap. 335 Code Ciy. Pro. § § 409, 410.

The presentation of the claim by the plaintiff to the comptroller pursuant to the requirement of § 105, of the New York city charter of 1873 (Laws of 1S73 chapter 335) *Held*not to be the commencement of an action also *Held*that the maintenance of an action before the 30 days has elapsed after the presentation of the claim to the city as provided by said section is prohibited' by said act and that under Code Civ. Pro. § 409 the running of the statute of limitations is suspended during the term of the statutory prohibition. That Code Civ. Pro. § 410 does not affect this question. *(Dickinson*v. *Mayor etc.,*92 N. Y. 584, distinguished.)

Appeal from an order of tlie supreme court, general term, first department, reversing a judgment of the New York county circuit dismissing the complaint and granting a new trial. The action being to recover back certain monej paid to discharge the lien of an assessment subsequently vacated.

*David J. Dean*with *E. Henry*Laeombe, for appl’t; *Moody B.*Smith, for resp’t.

1

 Affirming 39 Hun, 533.

Rapallo, J.

This action was brought to recover money paid to discharge the lien of an assessment, which, after the payment, had been vacated by order of the supreme court. The trial was before the court without a jury. The court at circuit dismissed the complaint. The general term reversed the judgment of dismissal, and ordered a new trial, and the present appeal is from the order of reversal. The only ground stated on the motion to dismiss was that there was no proof that the plaintiff ever paid the money. The money was paid under the following circumstances: The land, upon which the assessment was an apparent lien, was owned by Horatio N. Gray, the plaintiff’s intestate, and was subject to a mortgage held by Edward Roberts. A judgment was entered for the foreclosure of this mortgage, and the sale of the mortgaged premises by a referee, which judgment directed that all taxes and assessments-, upon the mortgaged premises be paid out of the proceeds of sale. Pursuant to this direction the referee, out of the proceeds-of sale, paid the assessment in question on the sixth of June, 1871. -Gray was then, as the former owner of the equity of redemption, entitled to the surplus moneys which arose on such sale. On his application, the assessment was vacated by order *663of the supreme court, dated December 4, 1871. This action was brought December 18, 1877.

It is apparent that the payment was made out of money belonging to the plaintiff’s intestate, and we think this was equivalent to a payment by him. The payment does not appear to have been made with his consent. He was living at the time of the trial, (the plaintiff having been substituted after judgment,) and testified that he was not aware of the fact at the time that the assessment was taken out of the surplus money. Having been paid out of funds belonging to him, and by order of the court, we think the payment was equivalent to a collection under process of law, and that, on the subsequent vacating of the assessment, he was entitled to recover the money so paid. So long as the assessment was not vacated, the court had power to direct its payment, and its validity could not be determined in the foreclosure action.

The.trial court, in its opinion, placed the dismissal on the ground that the foreclosure judgment, under which the money was paid, had not been set aside or annulled. We concur with the opinion of the court at general term that this ground is not tenable. The judgment of foreclosure was not the adjudication which created the apparent lien, nor the authority upon which the right of the city, as between it and the property or its owner, to collect the assessment, depended. It established no right as between them, and there was consequently no necessity of setting it aside for the purpose of entitling the plaintiff to recover the money paid. It was simply the means by which the city was enabled to collect the void assessment. On the appeal to the general term, the judgment of the trial court was sought to be sustained on the ground that the plaintiff’s claim was barred by the statute of limitations. We agree to the conclusion of the general term on tins point, but not with the reasoning by which it was reached. The general term held that the presentation of the claim by the plaintiff to the comptroller on the seventeenth of November, 1877, pursuant to the requirement of section 105 of the charter of 1873, (Laws 1873, *c.*335,) the statutory limitation of six years not having expired at the time of such presentation, was the beginning of proceedings to enforce the claim, and therefore a *quasi*summons or legal process, and consequently that the service of the demand by the claimant, within the period of six years after the claim arises, must prevent the application of the statute to his prejudice. We are unable to adopt this view. The presentation, although a necessary preliminary to enable a claimant against the city to maintain an action on his claim, is not the commencement of an action. But there are other reasons which preclude the defendants from availing themselves of the statute of limitations to sustain the judgment of dismissal. In the first place, although *664the statute of limitations was set up'in the answer, it does not appear to have been insisted upon, or even referred to, at the *trial;*but the motion to dismiss was placed, and the dismissal was granted, wholly on other grounds. If error was committed in this respect, it could not be cured by raising on the appeal another question, which was not raised at the trial, and to which if it had been raised, there might possibly have been some answer. But assuming the question to be before us, it is by no means clear that the plaintiff’s claim was barred by the statute. Conceding that the statute began to run on the fourth of December 1871, when the order or judgment vacating the assessment was dated, the period of limitation would have expired on the fourth of December 1877, but for the provision of section 406 of the Code of Civil Procedure, which is that, “ when the commencement of an action has been stayed by injunction, or other order of a court or judge, *or by statutory prohibition,*the time of the continuance of the stay is not a part of the time limited for the commencement of the action.” On the seventeenth of November, 1877, at which time the right of action -was not barred, the plaintiff presented her claim to the comptroller. She would at that time have been entitled to commence her action, but for section 105 of the charter of 1873, which required her to wait until the comptroller had neglected, for 30 days after such presentation, to pay her claim. That section, in express terms, prohibited her from maintaining any action until the lapse of the 30 days. We think that section 406 of the Code of Civil Procedure was framed to meet just such a case, and to suspend the running.of the statute during the term of the statutory prohibition. This view is quite consistent with the case of *Dickinson*v. *Mayor, etc.,*92 N. Y. 584. In that case it would not have helped the plaintiff, the term of the statutory suspension being only 30 days, and the plaintiff having exceeded the statutory limitation more than one year, and the claim not having been presented to the comptroller until more than three months after the statutory limitation had expired. But here the action was brought on the eighteenth of December, 1877. The statutory limitation is claimed by defendants to have expired the fourth of December, 1887. The excess was only 14 days, and the operation of sect. 406 being to suspend the running of the statute during the 30 days following the seventeenth of November 1877, when the claim was presented, the action was commenced in due time. This construction also relieves the statutes from the apparent inconsistency, pointed out in the opinión at general term, of allowing a plaintiff six years within which to commence an action, and at the same time prohibiting him, during 30 days of that term, from maintaining any action.

Section 410 of the Code of Civil Procedure does not affect this question. It provides only for cases where a simple demand *665is a necessary preliminary to the bringing of an action, and the action may immediately follow a non-compliance with the demand. Its language is: “ Sec. 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within winch the action must be commenced must be computed from the time when the right to make the demand is complete, except in one of the following cases.” The exceptions have no reference to the question now under consideration. cThis section (410) applies to many cases where a demand is necessary, and an immediate right of action follows ; but it could hardly -apply to the case of a promissory note payable 30 days after demand.. In the present case, not only a demand was necessary, but a presentation of the claim, and a neglect for 30 days to pay. The maintenance of an action before the expiration of the 30 days was prohibited, and the question is whether under section 406 the statute ran during the 30 days.

The order of the general term should be affirmed, and judgment absolute rendered against the defendants on their stipulation, with costs.

All concur.