(dissenting). Plaintiff’s representative went to the collector’s office to pay the taxes on plaintiff’s lot. She handed the clerk at the window an old bill upon which the lot and block number correctly appeared, stated she wanted a bill for the second half of 1942-43; he gave her a bill and told her to go over to the next window and pay it, and she accordingly went there and paid $126.65, the amount of the bill. However the clerk made a mistake, for instead of making out a bill for lot 62, block 2740, as noted on the old bill, he gave her one for lot 62, block 2640. About a year later the mortgagee called plaintiff’s attention to the fact that the taxes on the property were not paid, and upon threat of foreclosure and the collector’s refusal to credit the prior payment she again paid the taxes.
Here we have a case of a mutual mistake of fact —a mistake originally that of the city’s official, the plaintiff uniting in such mistake and paying the tax. “ For the city to keep the amount *1043paid would be wholly unjustifiable from any moral standpoint. An individual who should try to do the like would be deemed a dishonest man.” (Betz v. City of New York, 119 App. Div. 91, 92, affd. 193 N. Y. 625).
Further, from the standpoint of negligence I do not think that in the circumstances the taxpayer was chargeable with contributory negligence as matter of law in not checking up as to the correctness of the clerk’s work in making out the bill, in accordance with the advice on the face of the bill. It seems to me that Mrs. Gross had a right to assume the hill was correct and to go to the cashier and pay the bill as directed. The city cannot make law for the taxpayer by requiring him to cheek up against its own mistakes.
It is said in the majority opinion that the provision of the Administrative Code referred to, which exempts the city and its officers from liability for failure to notify registrants of assessments, indicates an intention on the part of the Legislature to exempt defendant from liability in this case. It would seem an undue stretch of imagination to put the mere omission to notify property owners of assessments in the same category with affirmative negligence of the defendant resulting in the exaction of double payment of taxes. Indeed the contrary intention is manifest.
No claim of unjust enrichment is made against the city.
I vote for affirmance.
Eder, J., concurs with Shientag, J.; Hecht, J., dissents in opinion.
Judgment reversed, etc.