[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 404 The taxing officers of the defendant omitted from the assessment-roll realty benefited by the improvement, and for this error assessments against the taxpayers who brought actions to set them aside were adjudged *Page 405 to be illegal. (Hassen v. City of Rochester, 65 N.Y. 516; 67 id. 528.)
There is a broad distinction between an assessment which is illegal by reason of the existence of some fact outside of the record, and one void on the face of the record, for lack of jurisdiction of the person or property, or by reason of the unconstitutionality of the statute under which the assessment is made. In the latter case, if money is compulsively obtained it may be recovered from the municipality in an action at law brought by the wronged taxpayer. But in case money is collected under an illegal assessment, it cannot be recovered until the assessment is set aside. (Horn v. Town of New Lots, 83 N.Y. 101; Purssell v. Mayor, etc., 85 id. 330; Strusburgh v.Mayor, etc., 87 id. 452; Bruecher v. Village Port Chester, 101 id. 240; Jex v. Mayor, etc., 103 id. 536.)
The rights of persons from whom money is collected under such assessments are like those of persons from whom money is collected under judgments void; for example, for lack of jurisdiction, and those which are reversible for error. Money collected under void judgments may be recovered without first setting them aside, but that collected under judgments erroneously obtained cannot be until they are reversed.
It is agreed that the assessment against the realty of the assignor of the plaintiff, and on account of which the money sought to be recovered in this action was paid has not been set aside, nor have any proceeding or actions been instituted for such purpose.
The judgment in Hassens case did not set aside all of the assessments but only those against the property of the plaintiffs in that action, and the assessment against realty of the assignor of the plaintiff was not affected or invalidated by that judgment, and until it is set aside no action can be maintained to recover the sums paid under it. (Matter of Delancey, 52 N.Y. 80; Wilkes v. Mayor, 79 id. 621; Purssell v. Mayor, etc., 85 id. 330; Chase v. Chase, 95 id. 373.)
The foregoing cases arose under special statutes regulating the remedies of taxpayers in cases of illegal assessments in the *Page 406 city of New York. (C. 338, L. 1858; C. 312, L. 1874; C. 550, L. 1880.)
But Moore v. City of Albany (98 N.Y. 396) did not arise under a statute affording aggrieved taxpayers special remedies, and it was there held that in case all the assessments on the roll were illegal for a common cause, not appearing on the face of the roll, or on the record on which it rested, a judgment vacating an assessment in favor of one taxpayer did not vacate the assessments against the others. (Reid v. Bd. Super. AlbanyCo., 128 N.Y. 364.)
The result is that the plaintiff failed to establish a cause of action for the recovery of the money paid, and the complaint was rightfully dismissed. These views render it unnecessary to consider the question of the effect of the Statute of Limitations.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.