Vaughn v. Village of Port Chester , 6 N.Y. St. Rep. 681 ( 1887 )

Barnard, P. J.:

The money in question was obtained by what is legally known as duress of goods. The village had worked and graded two of the avenues of the village, Haseco and Irving avenues. The corporate power to impose an assessment on the plaintiff’s lands therefor, was exceeded, and the assessment attempted to be imposed was illegal and void. The assessment remained an apparent lien on the land, and, under this condition of the facts, the plaintiff agreed to sell her land free of incumbrance. The purchaser refused to take title, and the plaintiff was compelled Dy the defendant to pay the assessment or to pay damages for breach of covenant to the purchaser. The assessment was paid by the plaintiff to the defend ant and received, under the plaintiff’s protest that the tax was illegal and void, and that she would sue to recover the same. The payment was not a voluntary one. “ To constitute a voluntary payment the party paying must have the freedom of exercising his will. When he acts under any species of compulsion, the payment is not voluntary. If a party has in his possession goods or other property belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and in order to obtain possession of his property he pays that sum, the money so paid is a payment made by compulsion and may be recovered back.” (Scholey v. Mumford, 60 N. Y., 498.) This principle covers the facts in this case.

The defendants held a void lien on the plaintiffs property, and used it to obtain, against the plaintiff’s will, the amount thereof, or to subject her to a loss of the sale of her property, and, perhaps, to an action upon the covenant for a clear title. Under these circumstances equity will not justify a retention of the money.

Order and judgment affirmed, with costs.

Pratt, J., concurred; Dykman, J., not sitting.

Order overruling demurrer to plaintiffs complaint, and judgment thereon, confirmed.