Trimmer v. City of Rochester — 30 N.Y. St. Rep. 703

Majority

p. 703

Sylvester Trimmer, App’lt, v. The City of Rochester, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 11, 1890.)

Headnote

Limitation—Action to becoveb moneys paid on illegal assessment.

An action to recover back money paid on an illegal assessment in ignorance of suck illegality is barred by the lapse of six years after the money is paid into the treasury.

Appeal from the judgment entered in Monroe county on a decision of the special term dismissing the plaintiff’s complaint upon the merits.

Turk & Barnum, for app’lt; Henry J. Sullivan, for resp’t.

On May 2,1865, the defendant, by its common council, passed an ordinance for the improvement of Oak street, in that city, from Allen street to Lyell street. The plaintiff’s assignor, Thomas Brady, was assessed for such improvement in the sum of $492, divided into three equal annual payments of $164 each, two of which were paid by him or some one in his.

p. 704

"behalf into the city treasury respectively in the years 1865 and 1866. In an action brought in the year, 1867 by one William E. Hasson, this street improvement was declared to be illegal because ■certain property belonging to the state of New York liable to assessment was left out of the roll and escaped assessment. 67 N. Y., 528 .

- This action was begun in the month of February, 1888. Doubtless the plaintiff’s assignor, having paid this assessment without knowledge of the fact of such defect in the rolls, might bring an notion to recover back the moneys upon the ground that the same were not in a legal sense paid out voluntarily,- but under coercion of law. Peyser v. Mayor, 70 N. Y., 497 .

We deem the case of Parsons v. The City of Rochester, 43 Hun, 258 ; 5 N. Y. State Rep., 467, as ..decisive against the plaintiff. There it was held that an action of this kind must be brought within six years from the time the money is paid into the treasury, •otherwise the claim is barred by the statute of limitations. That ■decision was followed by the decision of the court of appeals to the same effect in the cases of Diefenthaler v. Mayor, 111 N. Y., 331 ; 19 N. Y. State Rep., 126; and Jex v. Mayor, 111 N. Y., 339 ; 19 N. Y. State Rep., 132.

Under these authorities the plaintiff’s claim was barred by the statute of limitations, and his complaint was properly dismissed.

The judgment appealed from should be'affirined.

Dwight, P. J., and Oorlett, J., concur.