The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-08
Court Of Common Plems-scneral Term.
Before Hon. judges Ingrahsm and Woodruff.

PAYING MONEY UNDER WRONG ASSESS MRNT.
George Aiiencs. The MAYOR, Aldermen and Com
non0hy OF the city Of NtU YO,k-Th.s was an ap-
pesl from the Court below. The plaintiff it appears,
paid taxes under wrong assessment, aud nov seeks
to recover it back. Mr. Judson appeared for the
plaintiff. PIsintif alleges that in the month OF
September 1858, defendants gave notice to plaintiff
that his property fronting on Sixty second street
was charged with an assessment ia the sum of one
hundred and seventy two dollars and eighty eight
cents. That in the month of December, 1853, de.
fenoants left at bis residence bill, directed to Sal
Ivan w. Bennett, which recited, tnas previous no.
tice to pay The said sum OF SIP SO, assessed on his
property Tor grading Sixty second street. between
Seventh and Eighth avenues, having been given to
said Sullivan W. Bennett, ne was thereby further
notified that payment OF the said assessment was
expected TO be made or before the twelfth day of
September, 1853; and in case Of neglect, interest
would be charged, and measures taken to collect
same. That from these facts plaintiff was led TO
believe that said assessment had been made, and
existed 81 q charge and lien upon his (plaiutifs)
lots in sixty second street, between Sixth ana
Seventh avenues; that, therefore, on the 18th Of
January, 1854, he paid tie said SUN, with interest,"
Mr.. Dillon, Counsel for the Corporate n, submit.
ted that there Is no allegation that the plaintiff
acted under compu!sion, or that his pers0nal pro-
fraud on the part OF the defendants. or attempt
to mislead the plaintiff On the contrary,
it appears that the notice served a. plain.
tifis residence. in the month Of December,
1000 Wh6 uOb uucctcu w Huy Uut w W.
Bennett and that it expressly stated that the as
sessment was for grading Sixty.second street, be-
tween Seventh and Eighth avenues, the plaintiffs
lots being situate between Sixth and Seventh ave-
nues. The complaint, therefore, presents merely
voluntary ayment on the part OF the plaintiff made
with full knowledge OF the facts, or made when
the plaintiff had. as appears from the complaint,
notices In his possession which, II read by him,
would have prevented sny mistake on his part.
There was, then, no mistake OF fact In the eye OF
the law and the plaintiff cannot recover. The CON-
plant shows that the plaintiff was guilty Of the
gIossest negligence and iaches. He assumed tnas
the notices sent to Sullivan w. Bennett vera in
tended for Sullivan +. BIZ nnett, bis gransor; that
property in Sixty-second street be,w cen seventh
and Eighth avenues, was situated between Sxto and
Seventh avenues; and without looking at the maps,
with were open to his inspection, he voluntarily
went forward and paid the money. Where mis-
take of fact occurs through the plaintiffs 0wn
ne gligence be cannot recover. II being alleged by
the complaint that there was no assessment laid
upon the plaintiffs lots, the assessment In question
constituted 10 cloud upon the plaintiffs title, and
he cannot be said to have paid the same under com
pulsion. The act Of April o. 1918, "redu ing seve
raj laws relating particularly to the city Of New
York into one act" gives right TO patty paying
an assessment which ought TO have been borne BY
son who ought to have paid the same. The plain.
tiff should at least aege In his complaint that he
has exhausted his statutory remedy. The payment
BY the plaintiff discharged the Assessment IS lien
mon the lots actually assessed; and II the plaintiff
recovers In this action the defendant through his
negligence and hAstiness, will lose the amount OF
the sseeMments The decision rendered at the trial
term should be affirmed, and Judgment entered for
the defendants, with costs. Decision reserved