Betz v. City of New York , 103 N.Y.S. 886 ( 1907 )

Hooker, J.

..(dissénting):

The plaintiff has recovered of the. defendant, the-City of New York, judgment for a. sum of. money which she paid as taxes to it on October 2, 1899. The property of the plaintiff, which was apparently subject to this tax, became a part of the city of New York on the-1st day of January, 1898;. but on the 21st day of April,

1899, an act of the Legislature took effect, which removed this property from within the city of New York, and thereafter it became part of the county of Nassau. (See Laws of 1891, chap.

318, §§ 1, 1611; Laws of 1899, chap. 319.) From and after the second Monday of January, 1899, the tax commissioners of the city took steps which, on the 8th day of August, 1899, resulted in a levy of the tax, which the plaintiff paid several months after the separation of her property from the city.

The plaintiff was not called as' a witness; the only witness who testified for her was her agent, who stated that after he heard- that the taxes which had been levied were to be paid to' the city of New York, lie -went to the tax office in Long Island City and there made inquiry; that he was there informed that the taxes in question were to .be paid to this defendant, and he reported what he had learned to' the plaintiff. He then testified: “ She (the plaintiff) wanted to save some interest; the object of paying this at once was to save interest, to save the property being sold; it was paid on the first day the taxes were payable.” This is the only evidence as to why or the circumstances under which the tax was paid.

It is conceded, and is' doubtless the fact, that the levy of the tax in question was without authority of law. But there is no finding, and none could well have been made, that there was mistake of fact on the part of the plaintiff in the payment. The mistake, if any, was one purely of law. ■ But money may not be recovered. back ■ when .paid under such mistake. “ It is settled at. law, and the rule has been followed in equity, that money paid under a mistake of law with respect to the liability to make payment, or with full knowledge, or with-means of obtaining knowledge of all the eircum- , - stances, cannot be recovered back.” (See Newburgh Sav. Bank v. Town of Woodbury, 173 N. Y. 55, 60.)

The learned trial court, who heard tins casé without a jury, found that, the payment was “ involuntary,” and the respondent seeks to ■ uphold the judgment on the theory that the payment w.as made under coercion by law; The distinction between coercion in fact and' coercion by law, in cases of this character, is drawn by the court, per Folgee, J., in.Peyser v. Mayor (70 N. Y. 497), where ■ this language is iised. (p.-5Ól) : “ I have spoken of coercion in fact and coercion by law. By the first I mean that duress of person or goods, where present liberty of person or immediate possession of goods is so needful and desirable, as that an action or proceedings at law to recover them will not at all answer the pressing purpose. Duress of person is exemplified in Forshay v. Ferguson (5 Hill, 154); Eadie v. Slimmon (26 N. Y. 9). The cases of Maxwell v. Newbold (18 How. [U. S.] 511), and Harmony v. Bingham (12 N. Y. 99), illustrate what is-duress of goods. It may be well to say that there can be no pretense in this case of a coercion in fact. There was no taking or threat of taking goods. The oral protest was of no. import, save to show that there was not an assent to the proceedings. (Flower v. Lance, 59 N. Y. 603, 610.) Coercion, by law is where a court, having .jurisdiction of the person and the subject-matter, lias rendered a judgment which is Collectable in due course.” (See Wilcox v. Mayor of New York, 21 J. & S. 436.)

My conclusion is that, so far as the record before-us presents the facts, the payment of the tax, in question was voluntary, and rnay ■ not be recovered • back from the city. The judgment should, therefore, be reversed and a hew trial granted, costs to abide the event. .

Miller, J., concurred.

Judgment affirmed, with costs.