This action was brought to recover the sum paid in excess of the proper and just assessment upon the property for which the plaintiff was trustee. And in the complaint which was prepared for that purpose, it was alleged that in certain proceedings instituted in this court the assessment was declared invalid to a certain extent, and the amount imposed upon the lots mentioned in the proceeding was proportionately reduced. See Matter of Appleby (26 Hun, 427), in which it was held that it was the duty of the city to enforce the *146covenant made by the Hudson River Railroad Company, referred to jn the statement of facts herein, and that the imposition of the whole expense for the pavement upon the property owners was illegal.
It will have been perceived that the plaintiff at the time of the payment had no personal charge of the property, and that his agent who made it was ignorant of the covenant mentioned, and of the failure of the city to charge the company with its. proportion of the expense. And inasmuch as the imposition of the whole expense upon the property subject to the assessment had been declared to be illegal and it had on application been reduced, it was established, if not conceded, that a sum in excess of what the city was entitled to had been paid into its treasury, and the action to recover it back could therefore be maintained upon the authority of Strasburgh agt. Mayor (87 N. Y. 452).
It is not deemed necessary to discuss the various points which are suggested in .the briefs of the respective counsel, for the reason that the case cited is regarded as an authority justifying the plaintiff’s recovery in this action. The distinction is there drawn between such an action as this and one brought to recover back money paid upon an illegal assessment which the assessors had jurisdiction to impose, and which is not void upon its face, while the assessment remains unvacated and unreversed.
In that case the relief prayed for was that the assessment be declared invalid to the extent of the overpayment and that judgment be given for such over-payment. And the court said: “Why may not such an action be maintained ? There is no case to be found in the books holding that it cannot be. There can be no objection that both kinds of relief are sought in the action. In that respect it is analogous to an action in equity to reform a written instrument and then enforce it as reformed. And such actions have been frequently sanctioned, by this court. Here is a .case where it is conceded that' the plaintiff is equitably and justly entitled to the sum -which he seeks to recover. The only obstacle in his way is the nnvacated assessment.” And further, “unless then he can have equitable relief there will be a wrong without a remedy, an absolute failure of justice.”
For these reasons' it is not considered necessary to pursue this subject further, this court resting its conclusions upon the *147adjudication mentioned. The result is that judgment is ordered for the plaintiff.
Daniels, J., concurred. Present — Beady, P. J., and Daniels, J.Judgment ordered for the plaintiff.