The New-York and Harlem Railroad Company against Marsh

The New-York and Harlem Railroad Company against Marsh. Money voluntarily paid to a person authorized to receive it, if collectable, upon a claim of right, where there is no misrepresentation or mistake of any fact, cannot he recovered pack. Accordingly, where a collector of taxes for a town in Putnam county through which the Harlem railroad extended, called at the office of the company in New-York, and there exhibited to its treasurer a warrant and tax list issued by the board of supervisors of the county commanding him to collect a tax of the company, and requested its payment; and the treasurer, with knowledge of all the facts touching the liability of the company, paid the amount of the tax to the collector without objection or protest; Held, that the company could not recover back the amount from the collector, although it was demanded from him before he paid it to the county treasurer, and there was a defect in the assessment rendering the tax void which appeared from the warrant. Action to recover from the defendant $235, paid to him as collector of taxes for the town of South East in the county of Putnam. The cause was tried at the Putnam county circuit, before Mr. Justice Brown, in May, 1852. The following facts appeared on the trial: On the 6th of January, 1852, the defendant, being the collector of taxes for the town of South East, and having in his possession the tax list and warrant issued and delivered to him by the board of supervisors for the county of Putnam, for the year 1851, called at the principal office of the plaintiff in the city of New-York, and, in the language of the defendant who was sworn as a witness for the plaintiff, “told a clerk in the office he had a tax against the company (the plaintiff), and asked him upon whom he should call for it; the clerk inquired if he had a bill of it, and the defendant replied, No, but that he could make one ; that he did so, and the clerk handed it to the treasurer, who inquired the amount of his fees, and he replied five per cent; the treasurer asked why he did not present it before the fees became five per cent; that he replied that he did call on the freight agent of the company in the town of South East, who stated he had no funds to pay the tax; the treasurer then said to him, whenever you have such bills present them and we will pay them promptly; and he then paid the defendant the $235 with his fees as collector added; that he then had the tax list and warrant with him, which were his only authority to demand and receive the money, and these he at that time showed to the treasurer.” The entry in the warrant and tax list as to the tax in question was as follows, viz: Non-residents. Acres. Valuation. Personal. Total. Tax. N. Y. and Harlem Railroad Co.,............:...... $100,000 $100,000 $235 It appeared upon the trial that the original assessment roll for the town of South East, on which the board of supervisors acted in levying the tax and issuing their warrant, was, so far as concerned the plaintiff, precisely like the above extract from the warrant and tax list, omitting the last column containing the amount of the tax. The plaintiff proved that it demanded from the defendant the money paid him by its treasurer the next day after the payment was made, and that the suit was commenced a few days after and before the defendant paid the amount to the treasurer of Putnam county. It was approved on the part of the defendant, that the plaintiff,, during the year 1851, owned and occupied for the purpose of’carrying freight and passengers over the same on its railway, a continuous strip of land extending: from its office in New-York to Chatham Four Corners, in Columbia county, and that this strip of land extended through the town of South East. The counsel for the plaintiff objected to the introduction of this evidence and excepted to the decision of the judge permitting it to be given. At the close of the testimony, the counsel for the plaintiff insisted that the board of supervisors had no jurisdiction to impose a tax on the plaintiff’s land, because it was not described nor the quantity thereof stated in the assessment roll upon which they acted in imposing the tax; that the tax list formed a part of the warrant to the defendant, and that thereby the want of jurisdiction in the supervisors was, in law, known to him, and he had sufficient notice that the tax was illegal and that he had no authority to demand or receive it. The court decided that the omission of the assessors to describe the land and give the quantity did, not render the iinposition of the tax void, or impair the right of the defendant to collect it by virtue of the warrant, and that he had a right to do so; arid ordered judgment for the defendant, and the plaintiff excepted.' The judgment was affirmed by the supreme court, sitting .at general term in the 2d district. The plaintiff appealed to this court. Benj. Baily, for the appellant, among other points, insisted that the doctrine of voluntary payments did not apply to cases of this character. The payment of the money under the circumstances cannot be regarded as a voluntary payment, so as to bar this action. The money was paid to one having no authority. It was demanded under color of process, which process was illegal, and the money was demanded back before it was paid over to the county treasurer. (Frye v. Lockwood, 4 Cow., 454; Waite v. Leggett, 8 Cow., 195; Cow. Treat., 2d ed., 128, § 5; Corlies v. Waddell, 1 Barb., 355; Mill v. Martin, 19 Johns., 7; Shearer v. Fowler, 7 Mass. R., 31; The Amesbury Woolen and Cotton Manufacturing Co. v. Inhabitants of Amesbury, 17 id., 461.) Charles Ga Nun, for the respondent, insisted, among other points, that the plaintiff paid the money voluntarily; that where money is paid upon demand, and the payment voluntarily made with full knowledge of all the facts, and not induced by any frau 1 or improper conduct of the demandant, no action will lie to recover it back; a misapprehension of law is not such a mistake as will enable a party to recover back money paid under it. (Elliott v. Swartwout, 10 Peters, 137; Silliman v. Wing, 7 Hill, 159; Supervisors of Onondaga Co. v. Briggs, 2 Denio, 26, 39; Fleetwood v. City of New-York, 2 Sand., 475.) [MAJORITY — Johnson, J.] Johnson, J. The warrant issued to the collector of the town of South East by the supervisors of the county of Putnam neither gave nor purported to give to the collector authority compulsorily to collect the tax in the city of New-York. When, therefore, the collector exhibited to the proper officer of the plaintiff in that city his warrant and tax list, and requested or demanded payment, that demand,, though made under a claim of right on the part of the collector to receive the money if voluntarily paid, was only a demand of voluntary payment, and was not accompanied, either in point of fact, or apparently with a present power there to enforce payment. The case therefore does not stand upon the same ground as payments made to release'property from seizure under process to compel payment, either already actually made or about to he made. The warrant and tax list shown to the officer of the company gave him all the means of judging as to the liability of the company to pay the tax, which the collector possessed; he was not put under the pressure, even of the apprehension of an immediate or forced collection of the demand by authority of the warrant; he exercised his judgment on behalf of the company as to the propriety of paying the demand in view of all the facts which bore upon the question of its validity, and having determined to pay it, and having actually paid it without any protest against the liability, if that even would’ have had any effect, or any reservation of right in respect to' it, the company are now too late to recall his act. The lands of the company were liable to be taxed in the town of South East, and the money has been voluntarily paid upon a claim of right by the party receiving it, and without any misrepresentation or concealment of fact, in relation to the claim by him, or any mistake of fact on the part of the company. Under such circumstances no action can be maintained to recover it hack. (Silliman v. Wing, 7 Hill, 159, Supervisors of Onondaga v. Briggs, 2 Denio, 26.) The case was likened to that of Corlies v. Waddell (1 Barb. S. C. R., 355); but they are unlike in the precise point upon which that case was determined. There the party, who received the money had no authority to receive it, whether the claim upon which it was demanded was legal or not;- while here, if the demand was legal, the collector had authority to receive it; and, therefore, when it was paid to him without 'compulsion on his part or objection on the Dart of the party paying, its legality was conceded. The judgment should be affirmed All the judges concurred in affirming the judgment, on the ground stated in the foregoing opinion; and the question, as to whether the board of supervisors had jurisdiction to impose the tax, was not passed upon. Judgment affirmed.