text:
    THOMAS HOGAN, as Administrator, &c., Respondent v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Appellant.

      Negligence and contributory negligence.

    This action was brought by plaintiff to recover damages by reason of the death of his infant son under the following circumstances. On the evening of the 18th of August, 1887, young Hogan was riding on the rear platform of a car of the defendant. The car had no conductor. The car was going westerly from Second to Third avenue. The deceased was on the southerly side of the platform, nearest to the track for cars running in the opposite direction. Another boy, named Bibarvarro, was also on the rear platform, on the northerly side. The driver of this car, without stopping the same, tied up his reins and passed swiftly towards the rear of the car, with something in his hand and his arm uplifted in the act of striking. The deceased jumped from the car and, in doing so, another car of the defendant coming in an opposite direction ran over him, inflicting injuries upon him from which he died. It was shown that the car that inflicted the injuries was being driven -at a rapid gait, faster than the ordinary gait of street cars. ' »

      Held, that upon the evidence given the jury could find that defendant’s driver, in attempting to put the intestate off the car as a trespasser, acted in such way as to cause him to believe that bodily punishment was about to be inflicted upon him, although he offered no resistance, and that, consequently, within the rule laid down in the case of McCann v. Sixth Avenue R. R. Co., 117 N. Y. 505, it was not contributory negligence on the part of the boy to jump off on the wrong side of the car on which he was stealing a ride and in front of the horses of another car moving rapidly in the opposite direction. The defendant’s liability rests upon the rude, threatening and ill timed act of its agent who was attempting to put the trespasser off the car. This point was fairly submitted to the jury, and they were instructed to And for the defendant if they concluded that the acts and attempts of the driver to induce the intestate to leave the car involved no menace of bodily harm. The jury having determined the fact favorably to the plaintiff their verdict cannot be disturbed.
    This case seems to be fully controlled by the decision of the court in the case of McCann v. Sixth Av. R. R. Co., and in view of that decision none of the rulings of the learned judge who presided at the trial can be held erroneous.
    Before Freedman and Truax, JJ.

      Decided November 3, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      Vanderpoel, Cuming & Goodvoin, for appellant.

      Hays & Greenbaum, for respondent.
   By the Court.—Freedman, J.

The action was brought by the plaintiff as administrator of his infant son John Joseph Hogan, deceased, for damages by reason of the death of the said John Joseph Hogan occasioned by the alleged negligent and wrongful acts of the defendant. At the trial evidence was given upon which, if credited, the jury could find that defendant’s driver, in attempting to put the intestate off the car as a trespasser acted in such a way as to cause the intestate to believe that bodily punishment was about to be inflicted upon him although he offered no resistance, and that consequently within the rule laid down in McCann v. Sixth Av. R. R. Co., 117 N. Y. 505, it was not contributory negligence on the part of the intestate to jump off on the wrong side of the car on which he was stealing a ride, and to jump in front of the horses of a car coming in the opposite direction upon an adjoining track. In such a case the defendant’s liability rests upon the rude and ill-timed act of the agent who attempts to put the trespasser off. This point was fairly submitted to the jury and they were instructed to find for the defendant in case they should come to the conclusion that the attempt of defendant’s driver to induce the intestate to leave the car, involved no menace of bodily harm. Upon testimony which was conflicting, the jury determined the fact in favor of the plaintiff, and their verdict in this respect cannot be disturbed. The case seems to be fully controlled by the decision in McCann v. Sixth Ave. R. R. Co. It is even a stronger case for the plaintiff, for while in the McCann case the car from which the plaintiff was caused to jump, was standing still, the proof in this case is that the car from which the intestate was caused to jump, was kept moving. In view of that decision none of the rulings of the learned judge who presided at the trial, can be held to have been erroneous. The substance of the 7th request had already been charged, and consequently the refusal to charge otherwise than already charged, constituted no error.

The judgment and order should be affirmed, with costs.

Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    GEORGE PEYSER, Respondent v. JOHN C. McCARTHY, et al., Appellants.

      Accord and satisfaction by the voluntary act of a party injured to one or more joint tortfeasors, is a discharge of all.

    Plaintiff bought certain property from one Duntze. At the time Duntze owed one Wagner, and the firm of Austin, Nichols & Co., the substituted defendants herein. Plaintiff knew of the indebtedness to Wagner, but was ignorant of the fact that Duntze owed Austin, Nichols & Co., and to protect himself against the claim of Wagner procured the signature of Wagner to the bill of sale with Duntze. This bill of sale contained a statement that the property was free from all claims, etc. Afterwards Duntze confessed judgment to Austin, Nichols & Co., and execution issued thereon, and the sheriff levied on the property sold by Duntze to plaintiff, who paid the sheriff under protest $479.02. Afterwards plaintiff obtained from Wagner the sum of $475,00, and gave a document in which he acknowledged the receipt of the said sum and stated that it was in full for all claims and demand against the said Wagner. It appeared that plaintiff had no other claim against Wagner except that growing out of the sale of the property by Duntze and Wagner to him, but plaintiff sought to establish on the trial that he borrowed this $475, from Wagner.
    Held, The case presents this state of facts: Plaintiff makes a claim for the same cause of action against two parties. One of these parties pays the claim and afterwards plaintiff brings an action against the other party. We are of the opinion he cannot maintain such an action. The payment by Wagner acted as an equitable assignment by the plaintiff of any cause of action he had against the sheriff for seizing and injuring his property, and it was error for the trial judge to charge the jury as stated in the case. If the $475 was a loan by Wagner, as claimed by plaintiff, it would not act as an equitable assignment, but that question of loan or equitable assignment should have been submitted to the jury. The charge to the jury was, in effect, a direction to find for plaintiff on that point, and the defendants having excepted, it was not necessary for the defendants to go to the jury on that point.
    Before Freedman and Truax, JJ.

      Decided November 3, 1890.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

      Henry D. Hotchkiss, attorney and of counsel, for appellants argued :—
    I. The payment by Mrs. Wagner and the plaintiffs release of all claims against her, are a bar to a recovery in this action. (1.) Because it is satisfaction for the injury done to him. The principal which we rely on is the familiar one, that for one injury, whatever may be the number of separate actions' maintainable, there can be but one satisfaction. The rule is most frequently applied in actions against wrongdoers, where satisfaction by one, takes, away all of plaintiffs right of action, by leaving nothing for him to sue for. Yet there is no privity between the wrongdoers. “ There is, then, but a single injury ; and if the plaintiff could have maintained a joint action, it would be unjust that he should have a double satisfaction.” Thomas v. Rumsey, 6 Johns. 26, So where several actions were brought against joint trespassers, plaintiff recovered against one defendant and the judgment was satisfied. He then pressed this suit against the other defendant. Held, he could only recover his damages once. Per curiam. “ The defendants are to be treated as joint trespassers sued separately, in which case the plaintiff can have but one satisfaction ; but he may assess damages separately ; and then elect de melioribus damnis, and recover costs against each. The plaintiff therefore, is entitled to recover his damages but once ; and having either received them from Hawes, or discharged him without payment, that act must be considered a satisfaction or release of the damages as to both.” Knickerbocker v. Colver, 8 Cow. 111. “ The rule is, that a party receiving an injury from the wrongful acts of others, is entitled to but one satisfaction, and that an accord and satisfaction by, or a release or other discharge by the voluntary act of the party injured, of two or more joint tort-feasors, is a discharge of all.” Barrett v. 3d Ave. R. R. Co., 45 N. Y. 635 (per Allen, J.) “ There can be but one recovery against the same person for the same cause of action * * * and there can be but one satisfaction got from several persons for the same cause of action ; that is, for a single injury, though there may be several recoveries. * * * Two may join in one wrongful act; and the injury is single, though their act is joint; and there can be but one satisfaction therefor, though there may be two actions brought, and a recovery in each.” Woods v. Pangburn, 75 N. Y. 498. As is said by Chief Judge Ruger in Knapp v. Roche, (94 N. Y. 333, 334) : “ Under the general denial in this case it was competent for defendant to prove any facts tending to show that the plaintiff had not suffered damages to the extent claimed by him. For this purpose he could prove that the moneys illegally taken from the bank had been refunded, either by the alleged borrower or any one jointly liable, with himself for the injury complained of. * * While a plea of payment by a stranger, between whom and the defendant there is no priority, has sometimes been held to be unavailable as a defence, * * * yet satisfaction by one joint trespasser has always been held available as a bar to an action against another * * * This rule applies with equal reason to a partial satisfaction by one of the wrongdoers for the damages occasioned by the joint wrongful act of both. Such evidence is proper in mitigation of damages. And under the former practice was admissible under the general issue.” (The question of pleading here referred to does not arise in the case at bar, because, in addition to the general issue, we have pleaded the payment specially.) And this court, following Knapp v. Roche, has recently held that payment of a part of the damages by a third person (see the opinion per Sedgwick, Ch. J.) is proper in reduction of damages, if not as a complete bar. Muser v. Lewis, 50 N. Y. Supr. Ct. 431. All of the New York cases were carefully examined by Mr. Justice Brady in Hun v. Van Dyck, 26 Hun, 567, who says : “ Except as matter of pleading under the old system, there does not seem to be any reason why a stranger may not discharge another’s obligation if he choose to do so. He may indemnify himself by taking an assignment of the claim as suggested in 19 Wendell; but if he prefer not to do that and to regard it as a gratuity, he may enjoy the consciousness of having done a wise or a foolish thing, as the fact presents itself to him. But the creditor’s debt must be regarded as satisfied, and there is no reason why he should be permitted to demand a second payment from his debtor.” “ If any rule is to be applied, it ought to be that the person paying the debt, and he alone, should be subrogated to the right of the creditor ; and he alone, if any person, should be permitted to enforce the claim.” And these views are approved by the Court of Appeals, by which the case was affirmed (92 N. Y. 660), and where Chief Judge Ruger, in Knapp v. Roche, 94 N. Y. 333 (supra), cities the case as authority for the doctrine therein laid down. (2) Because as between the sheriff and Mrs. Wagner, the plaintiff had elected to hold the latter. After the sheriff had made his levy (conceding that it was unauthorized, and that he was a trespasser), and the plaintiff had paid the money to avoid a sale of his goods, the latter had two remedies open to him : [a) He might enforce his rights as owner of the property, by bringing an action against the sheriff for the trespass, or (b) He might (relinquishing the property and all right to recover for the injury to it), reclaim the purchase price from the vendors or those to whom he had-paid the consideration. He chose the latter course and thereby elected to hold only Mrs. Wagner. He is now precluded from enforcing the claim against the sheriff. The rule is, that one who has two remedies, each inconsistent with the other, between which he may choose, is bound by the choice that he makes ; and having adopted the one, will not afterwards be suffered to pursue the other. Rodermund v. Clark, 46 N. Y. 354 ; Morris v. Rexford, 18 lb. 552 ; Fowler v. Bowery Savings Bk. 113 lb. 450.
    II. The fact that Wulstein endeavored to make it appear that the money received from Mrs. Wagner was a loan and not payment, cannot be considered as affecting the question. The trial court having refused to let the jury consider the evidence touching the payment, or to submit to them any question arising out of the evidence on this point, the defendants are now entitled to the benefit of all the facts which their, evidence tended to prove. Royce v. Watrous, 7 Daly, 87 (Affd. 73 N. Y. 597.)

      John Fennell, attorney and of counsel, for respondent, argued :—
    I. Accord and satisfaction or release by operation of law is not pleaded. Either is an affirmative defence and must be pleaded. The defendants should have pleaded satisfaction. The answer is worth nothing without an averment of accord and satisfaction. Daniels v. Hallenbeck, 19 Wend. 408.
    II. The defence that the plaintiff is not the real party in interest was not substantiated upon the trial. It was not shown that plaintiff had assigned his claims to Mrs. Wagner; in point of fact this suit was pending against the sheriff when the loan of $475 was made. Defendants did not ask to go to the jury on any claim of assignment either in fact or in equity. They made no motion and presented no request to charge based upon that theory.

      III. Payment by Mrs. Wagner was not established. The uncontradicted evidence is that she made a loan. The claim was $479.02 and interest, and1 the loan was $475.00. Defendants did not ask to go to the jury on the question whether there was a loan or not, and presented no request to charge based upon the theory that the transaction was not a loan. Nor did defendants ask the court to charge that whether there was a payment or loan was for the jury to determine. They raise that question for the first time on this appeal.
    IV. Payment by Mrs. Wagner did not discharge the defendants. Satisfaction by a stranger is no defence. Blum v. Hartman 3 Daly, 49 ; Daniels v. Hallenbeck, 19 Wend. 408 ; Clow v. Borst, 6 John, 37,
    V. It has been held that a release of one of several joint tort-feasors, operates as a discharge of all the tort-feasors, if the payment is in satisfaction or if there is a release. That rule does not apply to this case, (a.) No such defence is pleaded. (5.) There was no satisfaction and no release, (c.) The transaction was purely a loan, (d.) Mrs. Wagner was not a joint tort-feasor or privy to any contract under which she was liable, either severally or jointly with defendants, (e.) The defendants (as indemnitors) were liable for a cause of action and for acts done with which Mrs. Wagner has not the remotest interest or relation.
   By the Court.—Truax, J.

The plaintiff was the owner, of certain property that he had bought from one Duntze. At the time of the sale Duntze owed one Wagner, and the firm of Austin, Nichols & Co. the substituted defendants herein. Plaintiff was ignorant of the fact that Duntze owed Austin, Nichols & Co., but did know that he owed said Wagner, and to protect himself against the claim of said W agner ,had said Wagner join said Duntze in making the bill of sale to him, said plaintiff. This bill of sale contained a statement that the property purchased “was free from all claims.” Afterwards Duntze confessed judgment to Austin, Nichols & Co., execution was issued on this judgment and the sheriff levied on the property that had been sold by Duntze to plaintiff. Plaintiff to relieve his property from the levy, paid the sheriff, under protest, the sum of $479.02. He now brings this action to recover that sum.

It was shown on the trial that, after payment by plaintiff to the sheriff, he went to W agner and obtained the sum of $475, and gave a document in which he acknowledged the receipt of said sum, and stated that such sum was, “ in full for all claims and demands of every nature and description ” against the said Wagner. It does not appear that plaintiff had any other claim against said Wagner than the claim growing out of the sale to him by Duntze and Wagner, and the seizure of the property by the sheriff. In fact, the only inference that can be drawn from the testimony is that he had no other claim. But plaintiff sought to show on the trial that he borrowed the $475 from Wagner.

The trial judge charged that plaintiff could not be defeated by the fact that he received the sum above mentioned from Wagner; that such payment must not be considered as a defence and did not enure to the benefit of the defendants and was not received as satisfaction. To this charge the defendants excepted.

The defendants had set up in their answer this payment by Wagner, and had alleged that plaintiff was not the real party in interest.

The case presents this state of facts : plaintiff makes a claim for the same cause of action against two parties ; one of these parties pays said claim and he then brings an action against the other party. Can he maintain such action ?

We are of the opinion that he cannot at present maintain such an action in this court. The payment by Wagner, that is if made as stated in the documents above referred to, acted as an equitable assignment against plaintiff of any cause of action that he might have against the sheriff for wrongfully seizing his, the plaintiff’s, property, and it was error for the trial judge to charge as above stated. If, however, said $475 was lent by Wagner to plaintiff, it would not act as an assignment or satisfaction of plaintiff’s claim against defendants, and in that event the question of loan or equitable assignment should have been left to the jury. The charge was, in effect, a direction to find for plaintiff on that point, and it was not necessary for defendants, they having excepted, to ask to go to the jury on that point. Vail v. Reynolds, 108 N. Y. 301 and cases there cited.

We have not considered the question of fraud in the sale to plaintiff, because that question was decided against defendants, and there are no exceptions in the case that bring the question before us.

The judgment and order appealed from are reversed and a new trial is ordered, with costs of the former trial and of this appeal to the party who finally prevails in the action.

Freedman, J., concurred.


text:
    GEORGE W. WHITE, Appellant v. MARY REED, as Executrix, &c., et al., Respondents.

      Referee—Order of reference, powers under same.

    Where the reference in the action is to state accounts and for a general accounting in regard to partnership assets and liabilities, and the amounts due and owing between them, etc., the referee is authorized and empowered to order judgment in favor of a party or parties found on such accounting to be entitled to judgment, although by the pleadings in the action said party or parties have not demanded affirmative relief and a judgment.
    Before Truax and O’Gorman, JJ.

      Decided November 3, 1890.
    Appeal from a judgment entered on the report of a referee, and from an order confirming the report of said- referee, and from an order denying plaintiffs motion to send the ease back to the referee. The decision on a former appeal is reported in 55 Super. Ct. Rep.

      Holmes & Adams, attorneys, and George W. Adams of counsel, for appellant.

      B. F. Edsall and Albert Stielmey, attorneys and of counsel, for respondents.
   By the Court.—Truax, J.

In stating the accounts between the parties the referee followed the rule laid down by the general term on the former appeal, and the judgment entered on his report must be affirmed unless he erred in giving an affirmative judgment in favor of the defendants against the plaintiff, a question that was not before the general term on the former appeal.

The action was brought by plaintiff to set aside, on the ground of fraud, a sale of co-partnership property made by him to the testators of the defendants, who were at the time of the sale plaintiff’s co-partners, and for an accounting. The defendants denied the fraud and demanded that the complaint be dismissed, but asked for no affirmative judgment. The court before whom the case was tried set aside the sale and ordered an accounting between the co-partners as of. the time of the sale. The judgment entered on the report of the referee, who had taken the accounting, was set aside and a new reference ordered. On this last reference the referee found that plaintiff was indebted to defendants, and ordered judgment in favor of the defendants and against plaintiff for the sum so found, and judgment was entered accordingly. The plaintiff contends that this was error because defendants had not demanded affirmative relief in their" answer.

The trial court appointed a referee, and directed that referee “ to state an account between the parties to the action in respect of said partnership assets, and also partnership liabilities, and of such amounts, if any, in which each may be liable or interested by reason of the premises ; and that said referee ascertain and report * * * * whether either of the parties is indebted to the other by reason of property appropriated or cash withdrawn or received and what is the amount of such indebtedness * * * that on the coming in and confirmation of said report either party may * * * * move for judgment thereon ” ; the judgment further provided, that nothing in it contained should “ prevent either party from preferring before the referee, nor prevent the referee from passing upon when preferred, any claim by either party to credit in his own favor or to debit against any other party in addition to the specific sums heretofore particularly directed to be charged or credited.” From this judgment plaintiff has not appealed.

I am of the opinion that it was the intention of the trial court to direct, and that it did direct, a general accounting as between the co-pártners of all of the copartnership affairs to the end that the party or parties who should be found on such accounting to be entitled to judgment should have judgment against the other party, and that plaintiff by not appealing has acquiesced in such direction.

But, even if plaintiff had not acquiesced, this court, in the interest of justice and to sustain a judgment, would order the answers to be amended by inserting a prayer for affirmative relief or by making the answers conform to the facts proved, if such amendment were necessary.

The judgment and orders appealed from are affirmed, with costs.

O’G-obman, J., concurred.


author: By the Court.—Tbuax, J.

text:
    ADDIE F. WHITNEY, Respondent v. SILAS G. WHITNEY, Appellant.

      Alimony, order to pay with counsel fee—Contempt of court for refusal or neglect to pay as ordered, when so determined.

    An order committing a person for contempt in not paying alimony and counsel fee, in a divorce case, must contain an adjudication that the party sought to be committed has refused to pay, and that such refusal was calculated to, or did actually defeat, impair or prejudice the rights of the party in whose favor such alimony and counsel fee bad been ordered; and in such order it must also appear that payment of the same cannot he enforced by execution, sequestration or resorting to the security of the party who is the subject of the order. These conditions not being incorporated and appearing in the order appealed from, the order is reversed.
    Before Fbeedman, Tbuax and Ingbaham, JJ.

      Decided November 3, 1890.

      Appeal from an order made at special term adjudging the defendant guilty of contempt in not paying alimony and counsel fee.

      Charles II Kitchel, attorney, and E. H. Born of counsel, for appellant.

      Andrew F. McNickle, for respondent.
   By the Court.—Tbuax, J.

We held in Mahon v. Mahon, 50 Super. Ct. 92, that an order committing a person for contempt in not paying alimony and counsel fee must contain an adjudication that the party sought to be committed has refused to pay alimony and counsel fee, and that such refusal was calculated to, or did actually defeat, impair or prejudice the rights of the party in whose favor alimony and counsel fee had been ordered. The order now before us on this appeal does not contain such an adjudication. See Matter of Swenarton v. Shupe, 40 Hun, 41 ; Sandford v. Sandford, 40 lb. 540.

Section 1773 of the Code of Civil Procedure, provides, that when the husband, in an action for divorce, fails to pay any money required to be paid by an order, and it appears to the court that payment cannot be enforced by execution, sequestration or resorting to his security, he may be punished for contempt. In the order before us no provision was made for security, nor does it appear that payment of alimony and counsel fee. cannot be enforced by sequestration proceedings, or by execution. It is true that the attorney for the plaintiff states in the affidavit on which the order appealed from was granted, that he believes that “an execution issued aganst the defendant herein could not be satisfied by reason of defendant’s being out of this court’s jurdiction but such statement is not. one on which the court could determine that payment of alimony could not be enforced by execution ; nor does it appear in the order that the court did so determine. For these reasons the order appealed- from is reversed. See Cockefair v. Cockefair, 7 N. Y Supp. 170 ; Sandford v. Sandford, 44 Hun, 563.

Order reversed and motions denied without costs, and with leave to plaintiff to renew on further affidavits.

Freedman and Ingraham, JJ., concurred.


author: By the Cotjbt.—O’Gobman; J.

text:
    GEORGE W. McLEAN, as Receiver of Taxes, &c., Plaintiff v. SARAH L. MYERS, Defendant.

      Taxes—Bank stock held by non-residents—Receiver of taxes as to action by.

    Taxes assessed on stock in banks in the city of New York held by nonresidents, cannot be recovered by the receiver of taxes in the city of New York in an action in personam against the owner of the stock under the provisions of section 863 of the Consolidation Act. The only action which the receiver of taxes can maintain for such taxes is one in rem under the .provisions of Chapter 409, Laws 1882.
    Before Truax and O’Gorman, JJ.

      Decided November 3, 1890.
    Verdict for plaintiff subject to the opinion of the general term. The facts sufficiently appear in the opinion.

      William H. Clarlt, counsel to the corporation, and George S. Coleman of counsel, for plaintiff, argued:
    The plaintiff as receiver of taxes in the city of New York is authorized by law to recover from defendant in this action the amount of the taxes claimed with interest. No question is raised as to the validity of the assessments or taxes, but the contention on behalf of defendant is that the plaintiff has no right to. recover in this action. The assessment of 1882 was made pursuant to the provisions of § 4, chapter 477 of the Laws of 1881, “ An Act to provide for the taxation of banks and of moneyed capital engaged in the business of banking, receiving deposits or otherwise.” The assessment of 1883 was made pursuant to § 312 of chapter XII. of chapter 409, Laws of 1882, “ An Act to revise the statutes of this state relating to banks, banking and trust companies.” The provisions of these acts, so far as the assessments in question are concerned, are identical! §§ 4, 312. “ The stockholders in every bank or banking association organized under the authority of this state, or of the United States, shall be assessed and taxed on the value of their shares of stock therein ; said shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place, city, town or ward where such bank or banking association is located, and not elsewhere whether the said stockholders reside in said place, city, town or ward or not, but, in the assessment of said shares, each stockholder shall be allowed all the deduction and exceptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this state, and the assessment and taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state.” The authority under which the plaintiff proceeds in the present case is found in § 863 of the Consolidation Act, which is a re-enactment in express terms § II of chapter 334, Laws 1867 ; and is as follows : “ Any tax duly imposed for personal property upon any person or corporation in the city and county of New York, and which shall remain unpaid and in arrear on the fifteenth day of January succeeding the year in which it shall have been imposed, may be recovered with interest and costs, by the receiver of taxes of said city, in an action in any court of record in this state.” The plaintiff submits that the taxes in suit were duly imposed for personal property upon the defendant, and were so imposed in the city and county of New York, and remained unpaid at the time when this action was commenced. While conceding these facts, the defendant claims that the authority of the receiver of taxes to recover by suit is limited to the recovery of taxes imposed on a person or corporation residing in the city ánd county of New York at the time the assessment is made, and does not extend to the case of a person residing in another county of the state. In support of this contention, reference was made on the argument below to the provisions of § 6 of chapter 477 of the Laws of 1881, and § 314 of chapter 409- of the Laws of 1882, as follows : §§ 6, 314. “ When the owner of stock in any bank or banking association organized under the laws of this state, or of the United State, shall not reside at the same place where the bank or banking association- is located, the collector and county treasurer, shall, respectively, have the same powers as to collecting the tax to be assessed by this act as they have by law when the person assessed has removed from the town, ward or county in which the -assessment was made, and the county treasurer, receiver of taxes, or other officer authorized to receive such tax from the collector, may all or either of them, have an action to collect the tax from the avails of the sale of his, her or their shares of stock, and the tax on the share or shares of said stock shall be and remain a lien therein from the day when the property is by law assessed till the payment of said tax, and if transferred after such day, the transfer shall be subject to such lien. The suggestion is, that since provision has been made for collecting the tax of delinquent non-residents from the sale of their stock, no other remedy is available. To this it may be answered (1.) That the provisions of the general acts referred to were not intended to apply to the city and county of New York. The terms “ collector ” and “ county treasurer ” are appropriate to the other counties of the state, but not to New York county. As long ago as 1843, by chapter 230 of the Laws of that year, the office of collector of taxes in the city of New York was abolished, and the appointment of a receiver of taxes was directed. The “ receiver of taxes” referred to in the (sections last quoted, is the officer of that designation in other counties, where the office of collector of taxes also exists. In the city of New York the receiver of taxes does not receive the revenues from any “ collector.” An instance of the application of the words “ collector ” and “ receiver of taxes” to counties other than New York, may be found in chapter 10, Laws of 1885. (2.) Even if the provisions of sections 6 and 314 were of general application, they are not inconsistent with the special authority conferred upon the plaintiff by § 863 of the Consolidation Act, to recover any tax duly imposed, &c., “ in an action in any court of record in this state.”
    The system of taxation in New York county is in many particulars different from the system prevailing elsewhere throughout the state. It was doubtless recognized by the legislature that many persons residing outside of our city limits would be liable to taxation here by reason of their holding of bank stock. New York city being the financial centre of the state, and of the entire country, would naturally attract investors to its moneyed institutions ; and unless a simple and effectual remedy by action against the person were provided to the local receiver of taxes, the city of New York might be practically unable to collect a large portion of its revenues. It was, therefore, wise and proper that special provision should be made for the metropolis. In support of the defendant’s position that the plaintiff had no such authority as he claimed under §863 of the Consolidation Act it was urged, on the oral argument, that the provision of the Consolidation Act was merely an embodiment of § 11 of chapter 334 of the Laws of 1867, and that at the time the Act of 1867 was passed there was no provision for collecting taxes due from stockholders of banks by the sale of their stock, as now provided by law. A reference to chapter 761 of the laws of 1866, “ An Act authorizing the taxation of stockholders of banks, and the surplus funds of savings banks,” will show that the argument was not well founded. Section 5 of that Act is, with a few trifling verbal differences, identical with sections 6 and 314 last above quoted, and is the source oh these later sections.. The legislature, in giving to the receiver of taxes of New York the ample power conferred by § 11 of chapter 334 of the Laws of 1867, must be presumed to have had in mind the Act of the previous year. If they had intended to restrict the authority to recover by action to taxes on personal property other than bank stock, it would have been a simple matter to insert the proper qualification.

      Stimson & Williams, attorneys, and E. P. Johnson of counsel, for defendant, argued :
    I. The defendant, being a non-resident and living in Westchester county, was liable to be taxed there for all her personal property except stock in banks elsewhere located ; and, as to her bank stock in New York city, a levy could be made according to law, and the tax could have been and should have been collected under the provisions of the banking laws. Laws of 1866, chap. 761 ; Laws of 1881, chap. 477 ; Laws of 1882, chap. 409 ; Laws of 1836, chap. 461.
    II. Section 863 of the Consolidation Act does not by its terms confer upon the receiver any right of action against a non-resident of the city and county of New York. It is a re-enactment verbatim of section 11 of chapter 334 of the Laws of 1867. This was entitled “ An Act in relation to the collection of arrears of personal taxes in the city of New York.” Its primary object was to create the office of the attorney for the collection of personal taxes, and to prescribe his duties, and it related solely to the city of New York. This ease is distinctly excluded by the language and construction of the section. It provides for the collection, by action of any tax imposed for personal property upon any person in the city and county of New York. This is the rational and grammatical interpretation. Had the legislature intended to provide for the collection of any tax imposed in the city and county of New York, without reference to the residence of the person, they would have said so. A simple transposition of the sentence would have effected this object. They have not done so, and the court should take and construe the section as it stands. The effect of the section being to take away the property of the individual by an exercise of paramount power, it should not be astutely extended beyond its natural import and the necessity of the case. No such necessity exists. Up to 1866, it is believed, no personal tax, or tax for personal property, .could be imposed, except upon a resident of the county, town or ward where the tax was imposed. 1 R. S., 389, § 5. Stockholders in banks were not taxed as individuals, but the bank itself was taxed on its capital stock, 1 R. S., 388, § 7 ; Laws of 1863, chap. 240 ; 40 Barb. 334. By chap. 761 of the Laws of 1866, a change was made, and the shareholders were taxed personally upon the stock held by them, and the bank was discharged. At the same time a new principle was introduced into the system of taxation, and the stock was made taxable at the place where the bank was located, whether the stockholder resided there or not. To meet this condition special and stringent remedies and methods for the collection of that particular tax were provided, and in particular for the collection of the tax where the shareholder was a non-resident. These provisions were re-enacted in 1880, in 1881, (chap. 477), and in the act to revise the banking laws (chap. 409 of 1882), and are now the law. Since the right of action conferred as above upon the county treasurer, receiver of taxes, etc., applies only in cases where the shareholder is a non-resident, while resident owners are left subject to the' operation of the general law,' it must be presumed that it was not the legislative intent to extend the operation of any general law to the case of non-resident shareholders in banks. People v. Dolan, 36 N. Y. 59.
    III. The only statute, other than § 863 of the Consolidation Act, which can be assumed to confer upon the receiver of taxes the right to bring an action at law in such a case as this, so far as we are aware, is the Act of 1866, above cited, and re-enacted in chap. 409' of the Laws of 1882. By § 314 of the last-mentioned act, when the owner of stock in any bank does not reside in the place where the bank is located, the receiver of taxes may have an action to collect the tax" from the avails óf the sale of his stock. This is no such action. It does not appear whether or not the stock is still in the possession of the defendant. No judgment of sale is demanded. No “ avails” are sought to be obtained, or when obtained to be subjected to the operation of the judgment. The judgment sought in this action is an ordinary money judgment, enforceable by execution out of any property of the defendant, real or personal.
    IV. The court will observe that at the time of the passage of the Act of 1866 no provision whatever existed conferring upon the receiver of taxes in New York city any rights of action. His office was created in 1843, but it was not until the passage of chap. 334 of the Laws of 1867 that he was authorized to bring action's at law. The Act of 1866 (chap. 761) created a new right. It taxed property never taxed before (People v. Dolan, 36 N. Y. 59), and provided new and special remedies for the enforcement of that right. Under such circumstances it is well settled that the remedies so provided are exclusive. Wood v. Supervisors of Monroe Co., 50 Hun, 6 ; Dudley v. Mayhew, 3 Comstock, 1. The tax on bank stock is in the nature of a tax in rem. It is like a real estate tax, and the property is liable in the first instance certainly, if not, as we contend, exclusively. Undoubtedly the receiver might have brought his action under the statute, and compelled a sale of the stock and the application of the proceeds. He might have resorted to the dividends, or enforced his lien as the statute prescribes. But it is too late now, after the lapse of nearly six years, and after the defendant may have parted with the stock to prosecute her generally for the amount of the tax, and charge her with interest and costs.
   By the Cotjbt.—O’Gobman; J.

The contention on this appeal arises from the following facts, which are admitted. The defendant was assessed in the city and county of New York, in 1882 and 1883, on certain stock in the Broadway National Bank standing in her name. She has always been and is a resident of Westchester county. The proceedings by which the tax was imposed were all regular, and a warrant for the collection of the tax was delivered in due form to the plaintiff, who is receiver of taxes in the city of New York. The tax has never been paid by defendant. It does not appear that any warrant to collect it has ever been issued to any marshal, or returned, or that there has ever been any attempt to levy it by distress and sale. The plaintiff, as receiver of taxes in the city of New York, now brings this action against the defendant and demands a money judgment for the amount of the tax and interest.

With the assent of counsel, the court directed a verdict for the plaintiff, subject to the opinion of the court at general term.

The receiver of taxes is an officer of the law and has no powers other than such as are expressly or by necessary implication conferred on him by the law. As a condition precedent to the right of the receiver of taxes to maintain any action for the collection of personal taxes under the provisions of § 863 of the Consolidation Act of 1882, it must appear that the case is one which by statute the receiver is authorized to send to the attorney for the collection of personal taxes for prosecution. These cases are ; (1.) “ All cases of personal taxes embraced in the assessment rolls when the assessment is $1,000 or more, and upon which a warrant to any of the marshals of said city and county has been issued and unsatisfied for a period of sixty days, or returned unsatisfied in whole or in part; ” and (2.) “All other cases of personal taxes when application to any court may be made for the collection of the tax." Consolidation Act, § 859.

The cases where application to any court may be made for collection of a tax, are those mentioned in section 857 of that act, and there is no evidence that any of the events have occurred in this case justifying the receiver of taxes in bringing this action against the defendant, lb. § 857.

Section 863 of the Consolidation Act provides for the collection by action, of any tax imposed for personal property upon any person in the city and county of New York. It is contended by the plaintiff here, that the true meaning of this clause is to be arrived at by construing it as if it had been written thus—“ for the collection of any tax imposed in the city and county of New York upon any person,” &c.

I do not think that we are justified in taking this liberty with the text of the law, especially as there is no necessity to resort to such a process. The law has made ample provision for the collection of taxes on bank stock no matter where the owner may reside.

By chapter 761, Laws of 1866, the stock was made taxable at the place where the bank was located, and special remedies were provided for the collection of that tax where the stockholder was a non-resident. First :—In case of non-residence, the collector and county treasurer may proceed against the person taxed, in the same manner as where a personal tax has been assessed upon a person who has subsequently removed from the town or ward where the assessment is laid, namely : by issuing a warrant to any sheriff or constable of the county to which the person has removed (Laws of 1836, chapter 461). Second :—And, this also in case of non-residence the county treasurer or receiver of taxes, may have an action to collect the tax “ from the avails of the sale of the stock.” Third :—The tax is made a lien upon the stock from the day it is assessed, until payment is made, and all transfers are subject to such lien. Fourth :—It is made the duty of the bank and of its officers to retain so much of any dividends declared upon the stock as will suffice to pay the tax, until the tax is paid. These provisions were re-enacted in 1880, in 1881 (chap. 477), and in the act to revise the banking laws (chap. 409 of the Laws of 1882), and are now the law.

By § 314 of chap. 409 of the Laws of 1882, the receiver of taxes may have an action to “ collect the tax from the avails of the sale of his (the owner’s) stock,” in cases where he does not reside in the place where the bank is located. This act, I think, is broad enough in its language to cover such transactions in the city of New York. The action now under consideration is not brought under or in compliance with this act. It is not an action in rem, for the purpose of procuring a sale of the stock, but an ordinary action, in personam, for a money judgment. It is not even alleged here that the bank stock is now in the possession of the defendant, and, as to the taxes of 1883, it would appear that the defendant was, in fact, not a stockholder when these taxes were imposed..

In my opinion this action, on the part of the plaintiff, cannot be sustained. The verdict for the plaintiff should be set aside, and the defendant should have judgment, with costs.

Truax, J., concurred.


author: By the Court.—Ingraham, J.

text:
    JOHN L. REDMOND, et al., Respondents v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.

      Assessments void for want of certain publication—Illegality not appearing on the record—Designation of paper, when not legal, when force of spent— Voluntary payment, what is not.

    The non-publication, in newspapers designated for that purpose pursuant to the requirements of statute, of the resolution and ordinance authorizing the re-paving and the laying and re-laying crosswalks of and in a street for the paving of which an assessment has once been paid, and directing an assessment for the expense thereof, renders the assessment illegal and void. Such illegality does not appear on the face of the record.
    A designation not communicated to the common council does not constitute a legal designation; consequently under such a designation there are no papers in which the proceedings could be published pursuant to the statute. The force of a designation for a particular year is spent at the close of the year, and does not continue until another designation is made ; consequently there is no presumption of the publication of proceedings had after the expiration of such year in the papers so designated.
    Where the owner, neither he nor his predecessors in title being chargeable with knowledge ofthe facts that rendered an assessment void, is obliged to, and does pay it in order to procure a loan upon his property, such payment is not a voluntary one.
    Before Freedman and Ingraham, JJ.

      Decided November 3, 1890.
    Appeal by defendant from a judgment entered on the decision of the court upon a trial before the court without a jury.
    This action is brought to recover back the amount paid by plaintiffs to defendant for an assessment levied on their property for paving Thirty-sixth street between Seventh and Eight avenues with Belgian or trap block pavement and for laying and re-laying crosswalks at the intersecting streets and avenues.
    It appeared on the trial that the ordinance authorizing the work and directing an assessment for the expense thereof provided that it should be done under such directions as should be given by the Croton aqueduct department, and also provided as to relaying those crosswalks already laid, that only those should be relaid which in the opinion of the Croton aqueduct board were not in good repair or not upon a grade adapted to the grade of the proposed new pavement. It appeared the street had been before paved, and an assessment levied therefor which had been paid. It further appeared that the said ordinance and the resolution recommending its adoption were not published as required by the seventh and the thirty-seventh sections of the charter of the city of New York passed in 1857. The resolution and ordinance were adopted by the board of aldermen on October 4, 1869, and by the board of assistant aldermen on October 23, 1869, and approved by the mayor December 24, 1869. The assessment was confirmed by the board of revision and correction of assessments on November 2, 1871, and its title was entered in the record of titles of assessment lists confirmed in the bureau of the collector of assessments on September 9, 1872, and in the office of the clerk of the bureau of arrears on November 13,1871.
    It appeared that on December 1, 1868, certain newspapers were by written paper, dated that day, signed Thomas Coman, Mayor, Bichard B. Connolly, Comptroller, designated by the mayor, and comptroller as papers wherein the proceedings of the common council or either branch of it and the notice of its committees, should be published. There was no evidence that this designation was communicated to the common council, the evidence tended to show that it was not communicated, and the trial court so found. No newspapers were designated as corporation papers by the mayor and comptroller from January 1,1869, until the summer of 1871. It also appeared that on July 6,1867, a proper designation was made for the year 1867, there was no evidence as to its having been communicated to the common council, and there is no finding on that point.
    Other facts appear in the opinion.

      William H. Clark, counsel to the corporation, and George L. Sterling of counsel, for appellant, argued.
    I. The plaintiffs have not shown that the assessment confirmed in 1871 was illegal. The respondents appear to claim the contrary because the ordinance for the doing of the work was not advertised as required by certain statutes. The proof is that in 1867, a designation of papers for the publication of corporation ordinances was made and presumptively (there is no finding on that point) communicated to the common council as required by statute, viz.: Laws of 1867, chap. 586, p. 1596. The presumption is always that every act that ought to have been performed by city officials in connection with the levying of assessments has been performed, unless the contrary is made to clearly appear. Matter of Hebrew Asylum, 70 N. Y. 476 ; Matter of Bassford, 50 lb. 512 ; Matter of Williamson, 3 Hun, 65-68 ; Matter of Gantz, 85 N. Y. 536 ; Bigelow v. Boston, 120 Mass. 826. It is also appears that on December 1, 1868, a designation was also made, but that it was not communicated to the common council. The ordinance for the doing of the work was approved by the mayor, December 24, 1869. The only ground on which the plaintiff can rely, therefore, is that because the designation made in 1868 was not communicated to the common council, the assessment is illegal on the authority of Matter of Anderson, 60 N. Y. 457. It appears that chapter 853 of the Laws of 1868 was not complied with. But although that was the case the designations under the Act of 1867 remained in force until new ones were made. Matter of Folsom, 56 N. Y. 60. It will be found, we think, that none of the following cases on which the plaintiff will doubtless rely conflict with Matter of Folsom on this point. Matter of Burmeister, 76 N. Y. 174 ; Matter of Douglas, 46 lb. 42; Matter of Aster, 50 lb. 363 ; Matter of Smith, 52 lb. 526 ; Matter of Phillips, 60 lb. 16 ; Matter of Anderson, 60 lb. 457 ; Matter of Burke, 62 lb. 224 ; Matter of Levy, 53 lb. 637.
    II. The payment was voluntary, and the money cannot be recovered. The ordinance in this case contains a delegation by the common council to the Croton aqueduct board of the discretion vested in the former body.. The ordinance, a copy of which was attached to the assessment list, contains a provision that crosswalks may be relaid where in the opinion of the Croton aqueduct board they are not in good order or are not on a grade adapted to the grades of the new pavement. It is thus -left to the Croton aqueduct board to determine what crosswalks shall be relaid. This makes the assessment utterly illegal and void and the invalidity appears on the face of the record, and therefore, the payment of the assessment was voluntary. Matter of Emigrant Industrial Savings Bank, 75 N. N. 388 ; Matter of Trustees of the Presbytery, 9 Daly, 357 ; Phelps v. The Mayor, etc., 112 N. Y. 216 ; Tappan v. Young, 9 Daly, 357. In the present case it not only appeared that it was left to the discretion of the Croton aqueduct board to determine whether any, and if any, what crosswalks should be relaid, but also that an item for the relaying was included in the assessment, The latter fact distinguishes this case from Burchell v. Mayor, 30 N. Y. State Reporter, 418. The following are the principal cases in point besides those to which we have already referred : Fleetwood v. Mayor, 2 Sandf. 475 ; Wilcox v. The Mayor, 21 Jones & Spencer, 436 ; Peyser v. The Mayor, 70 N. Y. 497 ; Sprague v. Birdsall, 2 Cow. 419 ; Clarke v. Dutcher, 9 lb. 674 ; Supervisors of Onondaga v. Briggs, 2 Den. 26 ; N. Y. & H. R. R. Co. v. Marsh, 12 N. Y. 308 ; Sanford v. Mayor, 33 Barb. 147 ; Union Bank v. Mayor, 51 lb. 159 ; Flower v. Lance, 59 N. Y. 603 ; Sexton v. Pepper, 28 Hun, 31 ; Chase v. Chase, 95 N. Y. 373 ; Lamborn v. County Commissioners, 97 U. S. 181 ; Union Pacific Ry. Co v. Commissioners of Dodge Co., 98 lb. 541 ; Oceanic Steam Navigation Co. v. Tappan, 16 Blatch. 296 : Union Ins. Co. v. City of Allegheny, 101 Penn. St. 250, is a case in point.

      James A. Deering, attorney and of counsel, for respondents, argued:—
    I. The assessment in question was void for the reason that the resolution and ordinance of the common council providing for the paving of 36th street and for the assessment of the expense thereof had not been published as required by the 7th and 37th sections of the then charter (1857) of the city. Chap. 446, Laws of 1857, §§ 7 and 37; chap. 853, Laws of 1868 ; Matter of Douglas, 46 N. Y. 42; Matter of Smith, 52 lb. 526; Matter of Burmeister,76 lb. 174. In the latter case the court said: “ In this case the evidence tended to show and without explanation was sufficient to- establish that no legal designation of papers was made under the Act of 1868 because upon the authority of Anderson’s Case, supra, such designation was not communicated to the common council, or was any evidence produced which would obviate the force of that requirement in that Act, or from which an inference could be drawn that it had been complied with. We cannot go back of 1868 because the selections in 1867 were limited to one year (In re Burke, 62 N. Y. 224). As the case stands we must assume that at the time this ordinance was passed there were no papers designated, neither according to the Act of 1870 or 1868, in which these proceedings could have been published, and this being so, the common council were expressly prohibited from passing the ordinance in question.”
    II. The plaintiffs are entitled to recover the assessment for the reason that it was in fact null and void because the ordinance and resolution providing therefor were wholly void and that the facts establishing this want of jurisdiction, namely, the invalidity of the ordinance providing for the work and the assessment did not appear upon the face of the assessment list. Tripler v. Mayor, 53 Hun, 36 ; Jex v. Mayor, 103 N. Y. 536; Bruecher v. Portchester, 101 lb. 240, 244 ; Strusburgh v. Mayor, 87, lb. 453 ; Home v. Town of New Lots, 83 lb. 100 ; Peyser v. Mayor, 70 lb. 497 ; National Bank of Chemung v. Elmira, 53 lb. 49 ; Newman v. Supervisors, 45 lb. 676 ; Bank of Commonwealth v. Mayor, 43 lb. 187.
    III. The payment of the assessment was involuntary and the money may be recovered. The circumstances under which the payment was made constitutes duress in fact. Tripler v. Mayor, 53 Hun, 36 ; Manhattan College v. Mayor. Supreme Court, Special Term, May 1890, Lawrence, J.; Connelly v. Mayor, Supreme Court Special Term, May 1890 ; Vaughan v. Portchester, 6 N. Y. St. Rep. 68.
    IV. There was duress in law as well as in fact. Peyser v. Mayor, 70 N. Y. 497 ; Tripler v. Mayor, 53 Hun, 36 ; Jex v. The Mayor, 103 N. Y. 536 ; Bruecher v. Portchester, 101 lb. 240 ; Strusburgh v. The Mayor, 87 lb. 453 ; Horn v. The Town of New Lots, 83 lb. 100 ; National Bank of Chemung v. Elmira, 53 lb. 749 ; Newman v. Supervisors, 45 lb. 676 ; Marsh v. Brooklyn, 59 lb. 280 ; Union Bank v.
      Mayor, 51 N. Y. 638 ; Bank of Commonwealth v. Same, 43 lb. 189 ; Robertson v. Frank Brothers Co., 132 U. S. 17 ; Diefenthaler v. The Mayor, 111 lb. 331. Phelps v. The Mayor, 112 N. Y. 216 has no bearing on the present action. There the assessment was invalid upon its face. It resembled Smart v. Palmer, 74 N. Y. 183, and Wells v. City of Buffalo, 80 lb. 253. In the present case the plaintiffs had no knowledge whatever as to the facts making the assessment illegal. There is no evidence, even inferential, that they had any actual knowledge as to frauds vitiating the assessment; but assuming that they knew, such knowledge on their part is immaterial. This is a new element entirely, or rather an attempted distinction, but without substance. Knowledge or want of knowledge of the fact constituting the invalidity of the assessment is wholly immaterial where the right to recover is founded upon duress in fact or in law. It is no part whatever of coercion in fact or in law. It is the simple fact that the assessment is in the nature of an enforceable judgment that constitutes, coercion or duress, as defined in Peyser’s case; knowledge of the fact that it is actually void, or in part illegal for jurisdictional or extrinsic reasons, may only make the coercion greater. If the assessment were assailed for the reason that it was paid in mistake of the facts, want of actual knowledge would have some bearing ; but the single ground is .that being apparently a valid assessment, it was per se a judgment that might be or could be or was in process of enforcement. Judge Folger in Peyser’s case said : “As he cannot resist the execution of it when- execution is attempted, he may as well pay the amount at one time as at another and save the expense of delay.” The analogy to judgment of courts was stated in Peyser’s case ; yet in all cases of .judgment the party paying the judgment has already contested the other’s claim, knows all the facts—all spread upon the record—yet when the judgment is reversed or action brought to recover the amount paid, he may recover. Actual knowledge has no bearing whatever upon the question of the right. The cases cited by the city’s counsel as follows : Thetwood v. Mayor, 2 Sandf. 475 ; Forest v. Mayor, 3 Abb. 350 ; Wilcox v. Mayor, 21 Jones & Spencer, 436 ; Sprague v. Birdsall, 2 Cow. 419 ; Clarke v. Dutcher, 9 lb. 674 ; Supervisors v. Briggs, 2 Den. 26 ; N. Y.& R. R. v. Monk, 12 N. Y. 308 ; Union Bank v. Mayor, 51 Barb. 159. Flower v. Lance, 59 N. Y. 603 ; Secton v. Pepper, 28 Hun, 31; Lambern v. County Commr., 97 U. S. 181; Union Pacific Railroad Co. v. Commrs., 98 lb. 541 ; were all long anterior to Peyser v. The Mayor and subsequent cases, and bear no analogy, in fact or in law, to the New York city assessment cases. Long quotations are made from the United States cases, but in both the Supreme Court applies the local law of the state from which the appeal came. That court, however, in the first cited case expressly refers to the fact that in those states where a future sale for non-payment would confer an apparently valid title a payment to remove a cloud upon the title would be compulsory. A judgment alone is technically coercion. Lott v. Swezey, 29 Barb. 87-94 ; Robertson v. Frank Brothers Co., 132 U. S. 17.

    V. The fact that the statute imposed interest at seven per cent, for non-payment of the assessment, and that such interest was accruing thereon was sufficient to constitute duress in fact. Robertson v. Frank, 132 U. S. 17 ; Union Bank v. Mayor, 51 N. Y. 638 ; Bank of Commonwealth v. Same, 43 lb. 189.
    VI. Another fact which under the special laws applicable to taxes and assessments in city of New York would make the payments involuntary is that a sale of the property for non-payment thereof could have been made by the city. Scott v. Onderdonk, 14 N.Y. 9 ; Haywood v. Buffalo, 14 lb. 534 ; Ward v. Dewery, 16 lb. 519 ; Hatch v. Buffalo, 38 lb. 279 ; Allen v. Buffalo, 39 lb. 386 ; Crube v. Andrews, 40 lb. 549 ; Newell v. Wheeler, 48 lb. 486 ; Astor v. Mayor, 5 J. & S. 581.
   By the Court.—Ingraham, J.

It is, I think, clear that the ordinance of the common council providing for the work and assessment in question, and the assessment imposed under the provisions thereof, was void under the rule adopted by the court of appeals in re Burmeister, 76 N. Y. p. 177, and that such invalidity did not appear upon the face of the assessment list. The defendant could not, therefore, have enforced the assessment.

It is also clear that if the plaintiff had been compelled to pay the assessment, and did pay it without knowledge of its illegality, plaintiff would be entitled to recover back the amount so paid in this action. Jex v. The Mayor, &c., 103 N. Y. 536 ; Tripler v. Mayor, &c., 53 Hun, 36. It is claimed on behalf of the defendant that the payment was voluntary and for that reason could not be recovered back. I am, however, unable to find in this case any facts that would make the payments of the assessment a voluntary one. The person who paid the assessment expressly testified that she had no knowledge that the assessment was void and that its payment was necessary because of the refusal of a trust company to make a loan upon the property until the assessment was paid. There is nothing to charge either the plaintiffs or their predecessors in title with knowledge of the facts that rendered the assessment void. The payment was not, therefore, a voluntary one, "and the plaintiff was entitled to recover. Tripler v. The Mayor, &c„, 53 Hun, 36.

The judgment should be affirmed with costs.

Freedman, J, concurred.


text:
    MARGARET C. SMYTH, Plaintiff v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant.

      Assessment, voluntary payment of.

    Plaintiff after having on her petition obtained from, the Supreme Court in July, 1881, an order vacating an assessment and directing the municipal officers to cancel and discharge the same and the lien or liens upon the records of their respective offices so far as the same affected plaintiff’s lot, neglected to enter the order until 1889. In the meantime she, in order to procure a loan upon mortgage on her lots, paid the assessment, no threat to sell the property having been made on behalf of the city and no proceedings of any kind to compel payment of the assessment.

      Held, a voluntary payment.
    Before Freedman and Ingraham, JJ.

      Decided November 3, 1890.
    Application for judgment in an action tried before a jury where the court directed a verdict for defendant subject to the opinion of the court at general term.
    The facts sufficiently appear in the opinion.

      James A. Deering, attorney and of counsel, for plaintiff, made the same points as to the payment being involuntary as he made in the preceding case, and he also argued :—
    I. The assessment having been vacated by a judgment of the supreme court, the plaintiff has an absolute right to recover the same. Jones v. The Mayor, Supreme Court, General Term, Nov. 1886. See Appendix ; Peyser v. The Mayor, 70 N. Y. 497 ; Pursell v. The Mayor, 85 lb. 330 ; Parsons v. Rochester, 5 N. Y. St. Rep. 469.
    II. The plaintiff is entitled to recover the assessment paid by her for the reason that the same was in fact illegal and void because there was fraud in the proceedings relative to the assessment and such fraud did not appear upon the face of the assessment list, but was adjudicated and settled by the order and judgment-of the Supreme Court of July 21, 1881. Jex v. The Mayor, 103 N. Y. 536 ; Bruecher v. Portchester, 101 lb. 240, 244 ; Strusburg v. The Mayor, 87 lb. 453 ; Hone v. The Town of New Lots, 83 lb. 100 ; Peyser v. The Mayor, 70 lb. 497 ; Nat. Bank of Chemung v. Elmira, 53 lb. 49; Newman v. Supervisors, 45 lb. 676 ; March v. Brooklyn, 59 lb. 280 ; Bank of Commonwealth v. Mayor, 43 lb. 187 ; Tripler v. the Mayor, 52 Hun, 36 ; Parsons v. Rochester, 5 N. Y. St. Rep. 469 ; Brehm v. The Mayor, 6 lb. 661 ; Vaughn v. Portchester, 6 lb. 681.
    III. The order of the Supreme Court made July 21, 1881, was not affected by the fact that it was not entered until July.24, 1889. The validity of the order is not affected by delay. Whitney v. Belden, 4 Paige, 140. The defendants were in no manner prejudiced by the delay in entering the order.
    IV. The said order of the Supreme Court and the proceedings to vacate the assessment in the said court were not affected by the proceedings subsequently taken before the assessment commission under chap. 550 Laws of 1880. Chap. 550, Laws of 1880, § 8 ; In re Longe, 85 N. Y. 307.

      William H. Clarke, counsel to the corporation, and George L. Sterling of counsel, for defendant, argued on the questions considered in the opinion:
    The payment was made with full knowledge of the facts and was voluntary, and cannot therefore be recovered. Phelps v. The Mayor, 112 N. Y. 21 ; Vannest v. The Mayor, &c., 113 lb. 652 ; Wilcox v. The Mayor, 21 Jones & Spencer, 436 ; Sands v. The Mayor, 13 N.Y. State Reporter, 61 ; Clarke v. Dutcher, 9 Cow. 674 ; Sprague v. Birdsall, 2 lb. 419 ; Fleetwood v. the Mayor, 2 Sandf. 475 ; Supervisors of Onondaga v. Briggs, 2 Den. 26 ; N. Y. & Harlem R. Co. v. Marsh, 12 N. Y. 308 ; Sanford v. The Mayor, 33 Barb. 147 ; Union Bank v. Mayor, 51 lb. 159 ; Flower v. Lance, 59 N. Y. 603; Peyser v. The Mayor, 70 lb. 497 ; Sexton v. Pepper, 28 Hun, 31 ; Lamborn v. County Commissioners, 97 U. S. 181 ; Union Pacific R. Co. v. Commissioners of Dodge County, 98 lb. 541 ; Oceanic Steamship Navigation Co. v. Tappan, 16 Blatch. 296 ; Union Insurance Co. v. City of Allegheny, 101 Penn. St. 250.
   By the Court.—Ingraham, J.

We think the payment of the assessment in this case was clearly a voluntary payment. Prior to the time of the payment proceedings had been commenced to have the assessment declared void, and an order had been signed by one of the justices of the Supreme Court, dated on the 21st of July, 1881, vacating the assessment and directing the municipal officers to cancel and discharge the same. and the lien or liens upon the records of their respective offices so far as the same affected plaintiff’s lots. This order does not appear to have been filed until some time in 1889. The court, however, had decided that the assessment was void and that it should be vacated.

In order to remove the lien of the assessment from the plaintiff’s property, she had to file the order, take a certified copy of it to the proper officers, and the lien was discharged. Instead of that she went and paid the assessment. There was no threat on behalf of the city to sell the property, and the assessment was paid not on account of any proceedings of any kind taken by the city but for her own purpose, viz., to obtain a loan on mortgage.

The case comes directly within the case of Phelps v. The Mayor, &c., 112 N. Y. 216 ; it was there stated: “We do not understand that the rule goes further in its authority to permit a recovery back of the moneys paid by a person under a tax or assessment than in a case where its payment being compelled by the actual or threatened seizure of his person or divesture of his goods.” Here the assessment had been declared by the court to have been illegal on plaintiff’s petition and an order signed so adjudging. A payment made under such circumstances was not compelled by an action or threatened seizure of his person or divesture of his goods.

We think, therefore, the defendant is entitled to judgment on the verdict, with costs.

Freedman, J., concurred.


text:
    THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant, v. MICHAEL FINN, TIMOTHY DONOVAN, and JAMES RILEY, Respondents.

      Service by mail, when no presumption of delivery—Notice, insufficient proof of service of.

    Where it does not appear to what place a letter mailed, postage prepaid, was addressed, there is no presumption that it was delivered at any place, or to the person to whom it was addressed.
    A course of business whereby after letters are signed they are copied in a letter book, addressed and put in the mail by either a clerk or messenger, will not raise a presumption that a particular letter was addressed to the person to whom it was intended to be sent at any particular place, or that the messenger knew the correct address of such person.
    Service of a notice to do an act is not proved by the mere evidence that a messenger delivered an envelope about thé contents of which he knew nothing; nor is it proved by showing that in a book there was a copy of a letter bearing a certain date requiring certain acts to be done in and about a particular business and that about that time a messenger of the writer delivered a- sealed envelope, of the contents of which he knew nothing, to the person to whom it was addressed, there being no evidence that there were not other business relations between the parties which called for the sending of letters requiring acts to be done in and about them, or that no letters on other matters were delivered about the same time.
    Before Freedman and Ingraham, JJ.

      Decided November 3, 1890.
    Appeal by plaintiff from judgment entered upon a dismissal of complaint.
    The facts sufficiently appear in the opinion.

      William H. Clark, counsel to the corporation, and John J. Townsend of counsel, for appellant, on the questions considered in the opinion, argued, among other things :—
    I. The city claims that the proof was, prima facie, sufficient to charge the defendant Finn with receipt of the notice of August 2, 1882, and that it was error to have excluded the paper. The witness Walsh, although he had no special recollection of this particular notice, testified clearly in regard to the course of business in his bureau ; that he at that time mailed all letters of that character in the bureau, and that he also before mailing them copied the letters in the press-book, sealed them in envelopes, put postage-stamps on them, and deposited, them in the U. S.' mail box. This proof showing the course of business was all that was needful to establish a prima facie case of sending this notice under the rule. Abbott's Trial Evidence, 433 ; Howard v. Daly, 61 N. Y. 362, 366 ; it was also proper to send the notice by mail. The Mayor v. Moore, 52 Hun, 139. The notice should have been admitted and the question left to the jury to decide whether the defendant Finn received it or not.
    II. As to the notices of May and August, 1883, as to which the court held that there had been a failure of proof. In regard to the notice dated May 23,1883, the witness, Walsh, although he never saw the original of the paper, testifies that on or about that date he delivered a paper in an envelope to the defendant, Finn, in person. He received it from the deputy commissioner, Mr. Hamlin, now dead, and he also received from Mr. Hamlin at the same time papers addressed to the defendants Eiley and Donovan, a significant coincidence, tending to show that the notices related to this contract in which all three of the persons written to were concerned. The witness Walsh is corroborated by the witness Mr. Clifford, the chief clerk, who testified to the course of business in respect to the originals of the notices of which the letter book was copies, were shown him. He also knew at the time of the trouble over Finn’s contract. The same proof was made in respect to the August notice. An important fact, and one tending materially to establish prima facie the receipt of the notice by Finn, that is to throw upon the defendant Finn the burthen of disproving the receipt of the notice, is the fact testified to by Walsh, that the papers were delivered by him to Finn personally. This should be given its due weight in connection with the technical character of the defence set up.
    III. The plaintiffs are entitled to haye every intendment and fair and legitimate inference and presumption which can be drawn from the testimony taken in their favor, and the court must apply this rule in considering the testimony. Cook v. N. Y. C. &. H. R. R. Co., 1 Abb. Ct. of Ap. Dec. 432, 433 ; Fairfax v. The Same, 8 J. & S. 128, p. 136.

      Arthur H. Smith, attorney, for respondent Finn ; L. Lafiin Kellogg, attorney for respondents Donovan and Eiley, and of counsel for all the respondents, on the questions considered in the opinion, argued, among other things :—
    I. There is in this case no proof of the address on the letter supposed to have been mailed, or of the prepaying of the postage. These are necessary in order to raise the presumption of service by mail. McCoy v. The Mayor, 46 Hun, 269 ; Rosenthal v. Walker, 111 U. S. 185 ; Bentley v. Whittier, 105 Mass. 391 ; Bell v. Lycoming Fire Ins. Co., 19 Hun, 238.
    II. The notices of May and August, were not proved. The entire proof is as follows : Mr. Walsh says that he received, in May and August, envelopes which were sealed, which he delivered to Mr. Finn in person and mailed to Mr. Donovan. That he did not know what the contents of the envelopes were, and could not swear positively to the identity of Riley and Donovan. The effect of this testimony is, that he delivered a sealed envelope, the contents of which he does not know, to Finn certainly, and to some one whom he believed to be Donovan. There is no force in the claim that the notices have been proved to have been given from the evidence tending to show the course of business in the office.
   By the Court.—Ingraham, J.

Plantiff alleges in the complaint that Finn, the contractor, failed and neglected to enter upon the performance of the work mentioned in the contract between himself and the plaintiff, and unnecessarily delayed the prosecution of said work in violation of the said contract; that the commissioner of public works notified Finn, in writing, that, in his opinion, the said work was unnecessarily delayed in violation of the provisions of the contract, and that unless the said work was resumed on or before the fifth day of June 1883, the work, would be declared abandoned and would he relet. That Finn wholly neglected and failed to comply with the requirements of the said notice.

To sustain this cause of action the plaintiff must prove that Finn wholly failed and neglected to enter upon the performance of the contract. By the contract Finn was to commence the work on such day and at such point or points as the commissioner of public works should designate. Before Finn could be said to have failed and neglected to enter upon the performance of the contract, the commissioner of public works must have designated a day upon which he was to commence work. Plaintiff attempted to prove the service of such a notice upon Finn. The court below held that the evidence was not sufficient to prove the service of the notice. In that ruling we concur.

The evidence relied on by plaintiff was the production of a book which purported to contain press copies of letters sent from the department and.in which appears a copy of a letter to Finn, dated August 2, 1882. Jeremiah, superintendent of street improvements, testified that he signed the letter and it was approved by the commissioner. That after the letter was signed it was copied in the letter book, addressed, and put in the mail by either the clerk or the messenger of the bureau. The messenger testified that he mailed all letters of that character and notices to the contractors to begin work at that time ; that he had no recollection of having mailed that letter ; that he copied the letters in the press book, put the letters in envelopes, sealed them, got stamps and mailed them.

This appears to be all the evidence as to the service of the notice. There is no evidence of the place to which the letter was addressed, nor of the residence of Finn, at the time.

While it may be presumed that a letter properly addressed with the postage paid and deposited in the post-office is delivered at the address named on the envelope where it does not appear to what place the letters is addressed, such a presumption cannot arise, and even if. we can presume from the course of business proved that the letter was mailed and the postage paid, there is no presumption that the messenger of the plaintiff knew the correct address of Finn and that the letter was addressed to him at any particular place. The evidence, therefore, failed to justify a presumption that the letter reached Finn.

We also think that the service of the notice of May 23, 1883, was not proved. The messenger of the department says that about that date he delivered to. Finn an envelope directed to him, about the contents of which he knew nothing, and which he received from the deputy commissioner of public works who is now dead. No one is produced who can testify as to the contents of that envelope.

There also appeared in the copy letter book, a letter addressed to Finn and to his sureties, dated May 23, 1883. No one was produced who could testify as to having seen the original letter, nor what was done with it after it was copied. All that was proved was that there was a letter copied in the book, dated May 23, 1883, and which was addressed to Finn, and that at about that time a messenger from the department delivered a sealed envelope to Finn of the contents of which he knew nothing, with no evidence that the plaintiff had no other contracts with Finn and that río other letters were delivered to him about the same time. This is clearly insufficient to prove that the letter in the envelope was the original of the copy in the book, and the court was justified in refusing to admit the letters in evidence.

The counsel for the plaintiff on the trial conceded that with the notice of May, 1883, out of the case the complaint must be dismissed, and as we are of the opinion that both notices were properly excluded, the dismissal was right, and the judgment should be affirmed, with costs.

Freedman, J., concurred.