Purdue v. Mayor of New York — 1 Daly (N.Y.) 121

Majority

p. 121

Thomas Purdue v. the Mayor, Aldermen and Commonalty of the City of New York.

Headnote

Tlie plaintiff paid an assessment imposed on his property, which, by mistake of the Collector of assessments, was credited to other property not owned by him; Held that plaintiff could not recover back the money as being paid by mistake.

p. 122

The plaintiff having paid his assessment, t3ic same is satisfied, no matter what entry may be made on the defendant’s books; and the plaintiiF has Ms remedy to enjoin tire defendants from selling the property for non-payment of the assessment, or he may compel the defendants to remove it as an in•cmnbrance or lien.

Appeal by the defendants from a judgment of the Marine Court at General Term, entered on a demurrer to the complaint.

The action was brought to recover a sum of money paid to the Collector of Assessments under a mistake of facts caused by the negligence of said officer.

The plaintiff called at the office of the Collector of Assessments to pay an assessment wMch was due from him to ..the defendant on a house and lot in the Nineteenth Ward known as No. 60. He inquired the amount of the assessment, received the necessary information, and paid the amount. The Collector credited the amount, not to plaintiff’s lot No. 60, but to lot No. 50, and the plaintiff sued to recover the amount paid. The defendants demurred to the complaint. Judgment was given for the plaintiff on the demurrer. The defendants then appealed to this court.

Henry H. Anderson for appellants.

Lewis Johnston for respondent.

By the Court.

The judgment in this case must be reversed. The plaintiff has mistaken his remedy. The facts stated in the complaint do not show the payment of money not due from the plaintiff to the defendants,‘but on the contrary, the payment of an assessment imposed upon the plaintiff’s property, which, by mistake, was credited to other property not owned by him.

The case is not one to recover money paid by mistake, but to recover back money rightfully paid as lawfully due, because the credit')!’ gave the benefit of the payment to another. Assuming the facts stated in the complaint to be true, -there can he no doubt but the assessment imposed on the plaintiff’s lot is paid, no matter wuat entry be mado on the books of the defendant, and they could be enjoined from selling such lot for non-payment of the assessment or be compelled, on a proper

p. 123

application, to remove it as an encumbrance or lien. In Allen v. The Mayor, 4 E. D. Smith, 404, the money was paid by a person against whom the defendants had no claim, and upon whose property no assessment had been imposed, although paid under the supposition that his property had been in fact assessed. That case is, therefore, essentially different from the one in hand, which I think cannot be sustained on principle or authority.

The judgment must he reversed.

Judge Hilton concurred.