Jex v. Mayor of New York — 19 N.Y. St. Rep. 132

Majority

p. 132

Emily D. Jex and Another, Executrices, etc., of Josiah Jex, Deceased, App’lts, v. The Mayor, etc., of New York, Resp’ts.^[1]

(Court of Appeals,

Filed November 27, 1888.)

Headnote

1. Taxes and assessments—Right to becoveb back amount oe assessment paid.

In an action to recover back money paid upon a void assessment the plaintiffs alleged that the assessment was void because there was no jurisdiction to levy the same. The defendants set up the six years statute of limitation. Held, that as this is a case where the plaintiff, in order to recover need not procure the setting aside of the assessment, the claim is incontestably one of a legal nature only. They commence their action for the recovery of money thus paid upon a void judgment, and when they prove that the judgment was void because there was no jurisdiction in the parties who made the assessment, and that they paid the money involuntarily they show a right to recover, and it is wholly unnecessary to set aside the assessment.

2. Same—Statute oe limitations—When pbopeblt pleaded.

The statute is properly pleaded where the answer alleges that the cause of action contained in said complaint has accrued more than six years before the commencement of the action.

Appeal from a judgment and order of the general term, supreme court, first department, reversing a judgment and order of the special term, and overruling plaintiff’s demurrer to two separate defenses contained in the answer. The action was brought to have the assessment for regulating, grading, etc., Broadway, from Thirty-second street to Fifty-ninth street in the city of New York, declared invalid, and then to recover the money paid in satisfaction of said assessment. The defendants having set up as-separate defenses to the cause of action alleged in the complaint, (1) that the cause of action accrued more than six years before the commencement thereof, and (2) that more-than one year had elapsed since the death of plaintiffs testator prior to the commencement of the action, and plaintiffs having demurred to said defense, upon the ground that each of them was insufficient in law upon its face to constitute a defense, the special term, by its order and judgment, sustained the demurrer to each of said defenses;, which said order and judgment were reversed by the said general term, which latter court also overruled said demurrer as aforesaid.

Herbert A. Shipman, for app’lts; D. J. Dean, for resp’ts.

In the above entitled case, the plaintiff alleged that the assessment was void because there was no jurisdiction to levy the same, and the plaintiff seeks to recover back the amount of the assessment paid to the city.. The defendant sets up the six years statute of limitation.

p. 133

As this is a case where the plaintiff, in order to recover, need not procure the setting aside of the assessment, the claim is incontestably one of a legal nature only. They commence their action for the recovery of money thus paid upon a void judgment, and when they prove that the judgment was void because there was no jurisdiction in the parties who made the assessment, and that they paid the money involuntarily, they show a right to recover within the authorities cited in the foregoing opinion (Diefenthaler v. Mayor, etc., of N. Y., ante, 126), and it is wholly unnecessary in such case to set aside the assessment.

A point is made that the eighth defense of the defendant, having been demurred to, the demurrer is unquestionably good, and should have been sustained.

A reading of the seventh and eighth paragraphs of the defendant’s answer shows that the eighth paragraph was not, and was not intended to be a separate defense. It was part and parcel of the seventh. In that, at the commencement thereof, the defendant uses this language: “ Further answering, and as a separate and further defense, the defendants allege,” etc., thus showing that the defendants then assumed to be setting up a separate defense from anything that had gone before. The fact that there is added in a separate paragraph (paragraph 8), this language, “Further answering the said complaint, the defendants allege,” etc., is conclusive evidence that it was not meant as a separate, but simply as a further defense.

Whether it was treated by the special and general terms as a separate defense, the demurrer to which was properly overruled, is of no importance, although we do not believe for one moment that either court assumed to decide that the eighth was an actual, separate defense and as such, a good one.

We think also that the statute was properly pleaded in this case. See Dickinson v. Mayor, etc., 92 N. Y., 584 . The facts in the Brehm Case ( 104 N. Y., 186 ; 5 N. Y. State Rep., 661), do not take this one out of the authority of the case of Dickinson, supra.

The order and judgment of the general term reversing that of the special term should be affirmed, with costs.

All concur.