Trimmer v. City of Rochester — 45 N.Y. St. Rep. 307

Majority

p. 307

Sylvester Trimmer, App’lt, v. The City of Rochester, Resp't.^[1]

(Court of Appeals, Second Division,

Filed May 31, 1892.)

Headnote

Payment—Limitation—Action to recover back money ignorantly PAID ON ILLEGAL ASSESSMENT.

Where lands are covered by an assessment appearing to be valid on its face, and an apparent lien upon the lands, but in fact illegal and void by reason of facts outside the record, and the owner involuntarily pays the assessment in ignorance of the facts, he can in one action set aside the assessment and recover back the money paid, and the statute of limitations begins to run against him from the date of his paying the money.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered in Monroe county on a decision of the special term dismissing plaintiff’s complaint upon the merits.

Turk & Barnum, for app’l.t; llenry J. Sullivan, for resp’t

This case was argued with Trimmer v. City of Rochester, 130 N. Y., 401 ; 42 St. Rep., 382 , and affirmed upon the opinion in that case. Id., 950. Reargument was granted because the plaintiff’s assignor was, in fact, a party to the Hassen actions referred to in our former opinion. In the reported case the plaintiff’s assignor was not a party to those actions and the judgments in them did not set aside the assessment as to him, and we assumed that this case was like it in that respect

Our opinion in 130 N. Y., 401 ; 42 St. Rep., 382 , requires a reversal of the judgment, unless the statute of limitations defeats the plaintiff’s recovery. We think within the rule established in Diefenthaler v. Mayor, 111 N. Y., 331 ; 19 St. Rep., 126 , the cause of action is barred by the statute.

The assessment was made in 1865 and involuntarily paid in 1865 and 1866. The judgment setting aside the assessment was entered September 9, 1882, and this action was commenced September 9, 1888. The plaintiff’s contention is that his cause of

p. 308

action did not accrue until the assessment was set aside. That would be so if it had been necessary to bring two separate actions, the first to vacate the assessment, and, succeeding in that, the second to recover the money involuntarily paid upon it. But this case, like the Diefenthaler case and Strusburgh v. Mayor, 87 N. Y., 452 , was one in which the lands were covered by an assessment appearing to be valid on its face, and an apparent lien upon the lands, but in fact illegal and void by reason of facts outside the record, and, therefore, there was no need to bring two separate actions; but the owner having involuntarily paid the assessment in ignorance of the facts could in one action seek to set aside the assessment and recover back the money paid upon it

The setting aside the assessment, it is held, is a mere incident to the legal cause of action to recover back the money, and, therefore, the cause of action did not accrue until the assessment was paid, and the six years limitation applies. The judgment must be affirmed.

Judgment affirmed, with costs.

All concur.