(dissenting):
The plaintiff paid an assessment imposed upon his land for a local improvement. Subsequently, on his application, the assessment was declared to be void, and it was vacated. These facts appearing the complaint was dismissed upon the ground that having voluntarily paid the assessment without disputing its validity, he could not recover. The decision thus made was erroneous. It cannot be denied that there are conflicting views expressed upon this subject in the eases in which the question has been directly or incidentally discussed, but the later cases warrant the conclusion that such a claim may be recovered back. (See Bank of the Commonwealth v. The Mayor, 43 N. Y., 184; Chapman v. City of Brooklyn, 40 id., 372.) The doctrine which has been declared and upheld in reference to voluntary payments may still be maintained upon the principle of stare deeisis, but it cannot stand the test of natural justice and equity, and the greater the inroads made upon it the better. The plaintiff in this case was entirely justified in assuming that the assessment was duly imposed, that is, was a burden upon his land and in paying it on that assumption. He was equally justified when he ascertained his error in that respect to seek to have it set aside, and when it was declared to be void,. the defendants were bound in honesty to refund his money. It is certain that they were not entitled to it, and that fact should determine the duty of the defendants at once. I think the judgment *418should be reversed and a new trial ordered with costs to abide the event. We cannot say that the defendants may not affect the right of the plaintiff to recover by facts to be shown by them in connection with, or in relation to the claim made herein.
Judgment affirmed.