Opinion
Argued October 16, 1888
Decided November 27, 1888
Herbert A. Shipman for plaintiffs. D.J. Dean for defendant.
In the above entitled case the plaintiffs alleged that the assessment was void, because there was no jurisdiction to levy the same, and they seek to recover back the amount of the assessment paid to the city. The defendant sets up the six-years statute of limitation. As this is a case where the plaintiffs, in order to recover, need not procure the setting aside of the assessment, the claim is incontestably one of a legal nature only. They commence their action for the recovery of money thus paid upon a void judgment, and when they prove that the judgment was void, because there was no jurisdiction in the parties who made the assessment and that they paid the money involuntarily, they show a right to recover within the authorities cited in the opinion in the immediately preceding case, and it is wholly unnecessary in such case to set aside the assessment. A point is made that the eighth defense of the defendant having been demurred to, the demurrer is unquestionably good and should have been sustained. A reading of the seventh and eighth paragraphs of the defendant's answer shows that the eighth paragraph was not, and was not intended to be, a separate defense, it was part and parcel of the seventh, in that, at the commencement thereof, the defendant uses this language: "Further answering, and as a separate and further defense, the defendants allege," etc., thus showing that the defendants then assumed to be setting up a separate defense from anything that had gone before. The fact that there is added in a separate paragraph (paragraph 8) this language, " further answering the said complaint the defendants allege," etc., is conclusive evidence that it was not meant as a separate, but simply a further defense. Whether it was treated by the Special and General Terms as a separate defense, the demurrer to which was properly overruled, is of no importance, although we do not believe for one moment that either court assumed to decide that the eighth was an actual, separate defense, and, as such, a good one.
We think, also, that the statute was properly pleaded in this case. (See Dickinson v. Mayor, etc., 92 N.Y. 584.) The facts in the Brehm Case ( 104 N.Y. 186), do not take this one out of the authority of the case of Dickinson v. Mayor, etc. ( supra).
The order and judgment of the General Term reversing that of the Special Term should be affirmed, with costs.
All concur.
Judgment accordingly.