McLaughlin, J. (dissenting):
The action was brought to recover a sum of money from defendant upon the following complaint: “ The plaintiff complaining of the defendant shows to the court as follows, upon information and belief: First. That the defendant is a municipal corporation, duly organized and existing under the laws of the State of Hew York. Second. That on the 11th day of May, 1897, the defendant became indebted to one Alexander Walker, plaintiff’s assignor, as hereinafter shown, in the sum of four hundred and three 82-100 dollars, and received said sum of four hundred and three 82-100 dollars to the use of the said Alexander Walker, in manner following, to wit: The said Alexander Walker, on and prior to the 11th day of May, 1897, was the owner of an apartment house, with stores underneath, situate on the northwest corner of the Boulevard and Hinety-third street in the city of Hew York, said premises being intended for dwelling and business use, and was properly-denominated a tenement house, with stores underneath, as such property is defined in the act of the legislature of the State of Hew York, ‘Entitled Chapter 567 of the Laws of 1895,’ passed May , 1895. That on and prior to the said 11th day of May, 1897, one Charles H„ T. Collis was the duly authorized agent, officially *471representing the defendant in the capacity of Commissioner of Public Works, and one Howard Payson Wilds was the duly authorized Deputy Commissioner of Public Works of the City of Hew York 5 that said Alexander Walker, plaintiff’s assignor, was desirous of covering over a certain area space in front of and on two sides of his said building with vault lights, consuming the space of two hundred and one ninety-one one-hundredths square feet (201-j^g- sq. ft.), but that the defendant, by the aforesaid Collis, as Commissioner of Public Works, had, for a long time prior to the 11th day of May, 1897, caused it to be publicly known that he, in his oficial capacity, would cause the arrest of all persons who might undertake to cover over area sp>aces in front of their buildings with vault lights without paying a sum of money to defendant in this action, or to the Department of Public Works, for the benefit of this defendant, in return for the permit issued by the said Commissioner of Public Works, which would authorize the holders thereof, and those paying therefore,* to peaceable* lay said vault lights over their area spaces ; and said Commissioner of Public Works furthermore publicly issued threats to the effect that lie would tear up and remove all vault light work which was laid without the authority of the permit, and would prosecute criminally in courts of law all persons undertaking to lay vault lights without a permit; that the said Alexander Walker having knowledge of the said public threats and menaces, and in order to secure peaceably permission to lay said vault lights and avoid threatened arrest and legal proceedings in the event of his disobeying the orders of the said Department, on the 11th day of May, 1897, as aforesaid, did apply to said Commissioner of Public Works as the official representative in this action of the defendant, for a permit to construct said vault lights; and in return for the same the said Commissioner of Public Works demanded from said Walker and received from him, as a consideration for the alleged privilege granted, the sum of four hundred and three dollars and eighty-two cents, or at the rate of two dollars per superficial square foot of area spaces covered ; that said Alexander Walker paid for said permit the said sum of four hundred and three dollars and eighty-two cents under duress and coercion, and said payment was an illegal exaction and extortion of money by the defendant herein, *472for the reason that the property on which said permit was to apply .was, T>y chapter 567 of the Laws of 1895, expressly exempted from paying for vault permits within area tines. Third. That thirty days prior to the commencement of this action the said Alexander Walker duly filed with the Comptroller of the City of Hew Y orlo in accordance with § 1104 of the Consolidation Act, a claim in writing, setting forth the facts aforesaid and making a demand for refund of said four hundred and three dollars and eighty-two cents, with interest thereon from the time said money had been paid. Fourth. That the defendant has never paid the said Alexander Walker said sum of four hundred and three dollars and eighty-two cents so demanded. Fifth. That prior to the commencement of this action said Alexander Walker, by a writing duly executed, assigned to this plaintiff all his right, title and interest in said claim against the defendant herein, and this plaintiff is now the legal owner and holder thereof. Wherefore, plaintiff demands judgment against defendant for the sum of four hundred and three dollars and eighty-two cents, with interest from May 11, 1897, with the costs of this action.”
The rule is well settled by an unbroken line of decisions in this country and in England that money voluntarily paid, in satisfaction of an unjust and illegal demand, with full knowledge of the facts and circumstances under which it is demanded, and without fraud, duress or compulsion, cannot afterwards be recovered by the person paying the same. This principle is so well established and universally recognized that it is unnecessary to cite a single authority to sustain it. It is, however, contended that the judgment appealed from should be sustained for the reason that the payment for which a recovery has been had was not voluntary, but compulsory. After a careful consideration of the record before us, I am unable to reach that conclusion. The facts are undisputed. At and for some time prior to the time the payment referred to was made, the city of Hew York, acting under a supposed legal right, exacted from property owners a fee for permission to cover certain area about buildings constructed, by them with vault lights. In May, 1897, Alexander Walker, plaintiff’s assignor, was constructing a building, and in connection therewith desired to cover certain area space with vault lights, and for permission to do so voluntarily paid this fee. I say *473voluntarily paid, because, as it seems to me, no other construction can be put upon his acts. He employed a contractor to put up the lights, and while engaged in doing that work an officer of the defendant called upon the contractor “ and wanted to know if he had got a permit,” and on being informed that he had not, the officer told him that he must get one or stop work, and if he did not do one or the other he would notify the police and have him arrested.' The contractor stopped work, notified Walker of what had transpired, and he thereupon applied for and on paying the sum of §403.82 obtained permission from the city to proceed with the work. No objection of any kind was made by Walker to paying just what the city demanded, and the sum was paid by him without even a protest. Some time thereafter this court decided (Buek v. Collis, 17 App. Div. 465) that the city had no legal right to exact from property owners, and they were under no legal obligation to pay to it, any sum whatever for permission to use their property in the manner in which Walker was using his. This action was then brought to recover the amount paid, and at the close of the evidence judgment directed for the plaintiff upon the ground that the defendant “ coerced ” Walker into paying what he did. I think the learned trial justice erred in thus directing a verdict. The facts stated in the complaint, as well as the testimony given by Walker upon the trial, clearly and conclusively show that the payment by him was entirely voluntary. Upon referring to the complaint, it will be observed that the allegation in reference to the payment of the money was simply that the commissioner of public works for a long time prior to the time the payment was made had caused it to be publicly known that in his official capacity he would arrest all persons who undertook to cover area space in front of their buildings with vault lights, without permission from the city so to do; and that Walker, having this knowledge “ and in order to secure peaceably permission to lay said vault lights and avoid threatened arrest and legal.proceedings in the event of his disobeying the orders of said department,” applied for and obtained a permit by paying the sum heretofore stated. Upon the trial Walker testified, “ I was never personally ever* threatened with arrest on *474that building; as soon as I heard of these public threats I went down there of my own accord to avoid any legal proceedi/ngs / I didn’t want to contend with the public authorities and I voluntarily went there and paid this money to avoid any litigation ; I did it so my man could work; if I hadn’t done it the man could not have proceeded with the work.”
Can a payment made under such circumstances be said to be compulsory ? It seems to me not. No fraud was practiced upon Walker. No threat was made to induce the payment. It may be assumed that what was said to the contractor, so far as the rights of the parties are concerned, was the same as though said to the owner of the building. All that it amounted to wras this : that an ordinance of the city relating to the construction of vault lights must be complied with or the city would institute legal proceedings to enforce the same, and the owner of the building, rather than contest the validity of the ordinance, made the payment. .It was, at most, an illegal demand made by the city in ignorance of the law, which was complied with by Walker either for the same reason, or else from a desire on his part to avoid litigation. Neither ignorance of the law nor a desire to avoid litigation enables a party to maintain an action to recover money paid. Walker, when he made the payment, was possessed of all the facts connected with or growing out of the demand by the city, and he then had an opportunity to determine the legality of the claim. He could have then had his day in court and demonstrated, had he so desired, that he was under no legal obligation to pay what the city asked, and that it had no right to execute the threat made. He could have applied for and obtained immediate relief by enjoining the city from interfering with the work which he was doing, and thus avoided any delay in the completion of his building. This is just what was done in the BueTc case above referred to. He preferred, however, if we accept his own statement, to make the payment rather than enter into a contest at that time with the city, and having done so, it must be held that he is estopped from claiming that the city had had no right to the money. This must be so unless we are prepared to hold that in every case in which money has been collected by a municipal corporation acting under an illegal ordinance or in violation of law, such money can thereafter be recovered by the party *475paying the same. The language of Gibbs, J., in Brisbane v. Dacres (5 Taunt. 143) is quite applicable to the facts of this case. “ We must,” says the learned judge, “take this payment to have beer, made under a demand of right, and I think that where a man demands money of another, as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily paid. It may be, that upon a farther view, he may form a different opinion of the law, and it may be his subsequent opinion may be the correct one. If we were to hold otherwise, I think many inconveniences may arise; there are many doubtful questions of law; when they arise the defendant has an option, either to litigate the question or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them.” The case just referred to was cited with approval in Redmond v. Mayor (125 N. Y. 632), Judge Gray observing, “ The long-established and well-recognized general rule on the subject of voluntary payments is that when made with knowledge of the facts and not induced by the fraud of the other party, they are beyond recall in law.” The language of Metcalf, J., in Benson v. Monroe (7 Cush. [Mass.] 125) is also quite applicable. He says : “ It is an established rule of law that if a party with a full knowledge of the facts voluntarily pays a demand unjustly made on him and attempted to be enforced by legal proceedings, he cannot recover back the money as paid by compulsion unless there be fraud in the party enforcing the claim and a knowledge that the claim is unjust.” And to the same effect is Flower v. Lance (59 N. Y. 603); Tripler v. Mayor (125 id. 617); Wood v. Mayor, (25 App. Div. 577). The principle involved in Wood v. Mayor cannot be distinguished from the principle involved in this case.
It is, however, suggested that the defendant, because it received the money without a legal right, ought not to be permitted to retain it. But the court considers not the moral but the legal rights and obligations of parties. Parties, if they see fit to do so, can stand upon their legal rights, and the court can only perform its duty by enforcing such rights according to well-recognized principles of *476law. Whatever, therefore, may be said as to the moral obligation of the city to return that which it had no legal right to receive, the fact, nevertheless, remains that the plaintiff’s assignor when he made the payment to the city had an adequate remedy at law had he seen fit to have then resisted the demand made upon him. This he did not do, but made the payment either in ignorance of the law or rather than enter into a contest with the city. Under such circumstances the court is powerless to compel the return of the money, without doing violence to a principle of law long since declared and generally recognized.
For these reasons I think the judgment should be reversed.
Judgment affirmed, with costs.
Sic.
Sic.