The plaintiff was the owner of premises designated by ward-number 28, in block 98, adjoining lot designated as 27 in *490game Mock. An assessment had been imposed upon his lot, and he proceeded to pay it, but by mistake paid the assessment which had beenjaid upon lot 27, and which was subsequently declared to be void. These facts are admitted by the demurrer. The case of Allen v. Mayor of New York, 4 E. D. Smith, 404, is an authority in favor of the plaintiffs right of action. It is not distinguishable in principle from this case. The plaintiff there was notified that his lands were assessed, and he paid the amount indicated. He subsequently discovered that no assessment had been imposed upon his lots, but upon other lots in the same street in which his were situated, and which were supposed to belong to his grantor, to whom the notice of assessment was directed. The defendants claimed that by the payment, their lien upon the lots actually assessed was extinguished, and urged against the • plaintiff’s recovery, that he was guilty of laches in not advising himself of the facts. The plaintiff’s right of action was maintained. Justice Woodbufj?, who expressed the opinion of the court, said, that the cases cited by him showed that a plain and palpable ignorance of the facts, at the time of the payment, would enable the mistaken party to recover it back, and further, that there was nothing to show that on the rectification of the mistake, the defendants might not proceed by all available means to collect the assessment from the proper source.
It has since been held by the court of last resort, not only that it does not affect the right of the payer to recover, that the mistake arose from a want of care on his part, but that it is equally unavailable to show that the defendant cannot be restored to his original position upon paying the. money back. Kingston Bank v. Eltinge, 40 N. Y. 391; Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 id. 452; Duncan v. Berlin, 46 id. 685; Lawrence v. Am. Nat. Bank, 54 id. 432; Nat. Bank of Commerce v. Nat. Mech. Banking Assoc., 55 id. 211.
The party having the legal right must prevail. The recovery in cases of this character résts on the principle that in equity and good conscience the- money should be restored. It does not comport with the dignity and power of the defendants, as a corporation, that it should retain money thus received, unless, its payment was productive of loss.
We are not advised of this. There is nothing to show such a result. In the legal aspect of this case as presented, the conclusion is otherwise, the land being liable for the assessment which was laid *491upon it. It may be said with propriety that the person to whom the plaintiff paid the money supposed, nay, believed, that the payment was made by the owner of the lot to which the payment related, or his representative. If he had known or supposed him-to be otherwise, it would not have been good faith to have received it without inquiry. Although the case in 40 N. Y., supra (Kingston Bank v. Eltinge), seems to set at rest the proposition that the receiver cannot be called on to refund, when the discharge of that duty will damnify him, it may yet perhaps be regarded as an open question.
The cases cited discuss the doctrine of estoppel in pais, and although there seems to be no place in this controversy for the application of such principle, nevertheless, the' defendants should have this opportunity of assailing the validity or good faith of the plaintiff’s claim, if they can do so, by answer to be interposed. The recovery of the plaintiff, assuming the facts to be as stated and admitted, must commend itself to every tribunal, for the assessment paid was subsequently declared void, and it had no merit as a claim. Indeed, it is as if no assessment had been imposed at all, and this in effect becomes, in all respects, like the case of Allen v. Mayor of New York, supra.
The plaintiff having paid money under a plain, palpable mistake, the judgment rendered in the court below was wrong, and should be reversed, but with liberty to the defendants to answer on payment of costs.
Ordered accordingly.