PERDUE a. THE MAYOR, &c., OF NEW YORK

PERDUE a. THE MAYOR, &c., OF NEW YORK. New York Common Pleas; General Term, February, 1861. Action to recover back Monet paid. Where a person is assessed in respect to his property and pays the amount, he cannot recover it hack on the ground that the officers applied the payment to assessments on other property not owned by him. His proper remedy is to enforce his payment as an exoneration of his land from the assessment. Appeal from judgment in the Marine Court. The plaintiff brought his action in the Marine Court to recover a sum of money alleged to have been paid to the collector of assessments in payment of an assessment upon a lot of the plaintiff. The collector had credited the payment to another lot, and refused to rectify the mistake. The defendants demurred to the complaint. Judgment was given for the plaintiff on the demurrer, and the defendants appealed to this court. Henry H. Anderson, for the corporation, appellants. Malcom Campbell, for the respondent. [MAJORITY — By the Court.—Brady, J.] By the Court.—Brady, J. —The judgment in this case must be reversed. The plaintiff has mistaken his remedy. The facts stated in the complaint do. not show the payment of money not due from the plaintiff to the defendants, but, on the contrary, the payment of an assessment imposed upon the plaintiff’s property, which, by mistake, was credited to other property not owned by him. The case is not one to recover money paid by mistake, but to recover back money rightfully paid as lawfully due, because the creditor gave the benefit of the payment to another. Assuming the facts stated in the complaint to be true, there can be no doubt that the assessment imposed on the plaintiff’s lot is paid, no matter what entry be made on the books of the defendants, and they could be enjoined from selling such lot for non-payment of the assessment, or be compelled, on a proper application, to remove it as an incumbrance or lien. In Allen a. The Mayor (4 E. D. Smith, 404), the money was paid by a person against whom the defendants had no claim, and upon whose property no assessment had been imposed, although paid under the supposition that his property had been in fact assessed. That case is, therefore, essentially different from the one in hand, which, I think, cannot be sustained on principle or authority. The judgment must be reversed.