p. 643John H. Burke, Resp’t, v. The Mayor, etc., of the City of New York, Appl’ts.(Supreme Court, General Term, First Department,Filed December 30, 1886.)Headnote
1. Assessment—Honeys paid under void assessment may be recovered BY ACTION.Where an assessment is wholly void it is not necessary that it should he vacated by an order of the court to entitle the plaintiff to recover back the amount paid upon the assessment, but the proceeding through which it was made may be wholly disregarded and an action brought against the city to recover back the money.
2. Same—Demurrer—Demand for judgment.
In such an action a demurrer having been interposed it is no objection to plaintiff’s right to maintain the action that the demand for judgment may have included more than the amount of the assessment.
Appeal from a judgment recovered on an order overruling a demurrer to the plaintiff’s complaint as frivolous.
George 8. Coleman, for app’lt; Elliot Sandforcl, for resp’t.
The object of the action was the recovery of the sum of $219.90, with interest thereon which had been paid upon an assessment for a local improvement in the city of New York. The objection chiefly taken to the right of the plaintiff to maintain this action, was placed upon the effect of section 891", of chapter 410, of the Laws of 1882. But this action is not controlled by this section, for the reason that it appears by the complaint, that the assessment itself was void, and that the payment was coerced under its apparent authority. That it was void, was held in
p. 644Matter of Deering ( 85 N. Y., 1 ). And being wholly void, it was not necessary that it should be vacated by an order of the court to entitle the plaintiff to recover back the amount paid upon the assessment. But the proceeding through which the assessment was made, could be wholly disregarded, and an action brought against the city to recover back the money.
People ex rel. Hays v.
Brooklyn, 71 N. Y., 495 ;
Bruecher v.
Village of Port Chester, 31 Hun, 550 ; affirmed, 101 N. Y., 240 .
It was no objection to the right of the plaintiff to maintain the action that more than this may have been included in the demand for judgment, for as the facts were admitted by the demurrer, the plaintiff was entitled to recover this sum of money. There could be no dispute as to the defendant’s liability, and the order overruling the demurrer was rightly made. The judgment should be affirmed with costs.
Davis, P. J., and Brady, J., concur.