(91 Hun, 214.)

#### NEW v. VILLAGE OF NEW ROCHELLE.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

VOLCNTARY PAYMENT—ASSESSMENTS.

Where a warrant has been issued for the collection of an invalid assessment, and the plaintiff, believing it to be enforceable, did not wait for a distraint under the warrant, but paid the assessment, the payment was voluntary, and he cannot recover back the amount. Vaughn v. Village of Port Chester, 32 N. E. 137, 135 N. Y. 460, distinguished.

Appeal from Westchester county court.

Action by John New against the Village of New Rochelle to recover the amount of assessments levied on plaintiff’s property. From a judgment in favor of plaintiff, entered on the decision of the county judge on a trial without a jury, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Michael J. Tierney, for appellant.

O. H. & J. A. Young & Terry, for respondent.

BROWN, P. J.

This action was brought to recover the amount of an assessment levied upon the plaintiff’s property by the defendant for resetting curbs on the streets in front of said property, and which was paid by the plaintiff to the collector of the village. An assessment for similar work was declared void by this court in the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185, 31 N. Y. Supp. 592. The assessment reviewed in that case depended upon the same provision of the village charter as that levied against the plaintiff, but the effect of the decision of the court in Spencer’s Case was not to set aside all the assessments for recurbing levied under the resolution of the trustees of the village, but only that agaihst the relator in that proceeding. The case was not one where a single sum of money, to be raised by assessment, was divided and distributed over a given district. Each assessment was separate and distinct from all others, and was supported by facts applicable alone to the property and individual assessed. This action may, however, be maintained, although the assessment has not been declared invalid, if (1) the assessment is void upon the face of the proceedings, and (2) if the payment made by the plaintiff was involuntary, and the result of coercion in fact or in law. That the assessment was void upon the face of the proceedings is not disputed by the appellant, and it was so decided by this court in Spencer’s Case, supra. It is, however, claimed that the payment made by the plaintiff was voluntary, and that question is the only one to be considered on this appeal. It appears that after the assessment was levied the trustees of the village caused a warrant to be issued for the collection thereof to the collector, whereby said collector was directed, after the expiration of 60 days from the date of the warrant, if said assessment was not paid, to collect the same by distress, in the same manner as collectors of town taxes are authorized by law to do. While said warrant was in the hands of the collector, the plaintiff, not knowing that said assessment was invalid, but supposing it was enforceable, *212paid the same. By the charter of the village, assessments of the char: acter of the one under discussion were made liens upon the lots in front of which the work was performed, and the trustees were empowered, in case of nonpayment, to sell the property. The decision of the learned county judge was made upon the authority of Vaughn v. Village of Port Chester, 135 N. Y. 460, 32 N. E. 137. I think that case has been misapprehended and misapplied. The decision there did not rest upon the fact that a warrant had been issued for the collection of the tax, but upon the resolution of the village trustees to sell the land. That such was the decision of the court is apparent from the authorities cited, and from the concluding remarks of Judge Gray’s opinion where he says: “When proceedings to collect the assessment had taken such legal shape as that payment might be enforced by a sale authorized to be made, then the payment by the plaintiff could not be termed a voluntary one, within the doctrine laid down in the cases of Peyser v. Mayor, etc., 70 N. Y. 497; Horn v. Town of New Lots, 83 N. Y. 100; Bruecher v. Village of Port Chester, 101 N. Y. 240, 4 N. E. 272; Tripler v. Mayor, etc., 125 N. Y. 617, 26 N. E. 721; and Redmond v. Mayor, etc., 125 N. Y. 632, 26 N. E. 727.” What constitutes coercion in law is very clearly stated by Judge Folger in Peyser v. Mayor, etc. It exists, he says “when a court having jurisdiction of the person and subject-matter has rendered a judgment which is collectible in due course.” Also in “those quasi adjudications of inferior tribunals such as assessors of taxes or' assessments, where their proceedings are regular on their face, and on presentation make out a right to have and demand the amount levied, and to collect it in due course of law.” And it was further said that “to warrant an action to recover back money paid by coercion of law upon a judgment or assessment laid, it must appear that the judgment or proceedings were prima facie regular, so as not themselves to furnish evidence of their own invalidity.” Ih Bruecher v. Village of Port Chester an involuntary payment was defined to> be one made to an officer who has a valid process which he can enforce. And in Redmond v. Mayor, etc., it was said that coercion in law would exist only in cases ’where payment of an assessment, having been demanded by the authorities, appears to be legally and rightfully due them. There cannot be coercion in law, therefore, by the mere issuing of process for the collection of a void assessment; and when an assessment is paid which, upon its' face, carries notice of its illegality and consequent invalidity, and no duress is resorted to for its collection, such payment is voluntary in the eyes of the law, and its restoration is denied. Fleetwood v. City of New York, 2 Sandf. 475; Redmond v. Mayor, etc., 125 N. Y. 632, 26 N. E. 727. The fact that the plaintiff was actually ignorant of the invalidity of the assessment does not make his payment an involuntary one. The rule is well established that a person cannot recover back money paid on the ground that he supposed he was legally bound to pay it. Ignorance of the law 'is not a justification of the payment. Phelps v. Mayor, etc., 112 N. Y. 216, 19 N. E. 408. There was in this case no threat or taking of the plaintiff’s goods, and therefore no coercion in fact, and, as we are of the opinion that there was no coercion in *213law, the payment of the assessment must be deemed to have, been voluntary, and cannot be recovered.

The judgment must be reversed, with costs of appeal, and the complaint dismissed, with costs. All concur.