The order permitting the service of the supplemental answer was discretionary. (Code of Civil Pro., § 544.) The discretion was properly exercised in this case. (Spears v. The Mayor of New York, 72 N. Y., 442.)
From the view we have taken of this case, however, the service of the supplemental answer did not prejudice the plaintiff’s case. The appellant paid the money she now seeks to recover to release the land in which she had simply a dower interest from the assessment. No process had been issued for its collection. Notice had been given her in May, 1879, through the mail, that the assessment was due, and that unless it was paid five per cent would be added for collection, and in the July following she, being informed by the respondent’s treasurer, that if the assessment was not paid interest would accumulate upon it, paid the amount due. Payment was made out of her own funds. She did not pay this money under duress of person or property. The appellant having simply a dower interest in the land assessed, the respondent had no personal claim against her. ■ So there could be no duress of her person or property. Until the assignment of her dower she had no estate in the lands, but merely a right of action. Nothing had been done by the respondent looking to the sale of lands in which she had a dower interest. Her dower interest was not in peril provided her husband left sufficient personal property to pay the assessment; and she failed to prove upon the trial that there was not sufficient'personal property of the estate to pay the assessment.
A widow is entitled to have her dower assigned to her clear of the arrears of taxes and assessments, which are payable out of her *91husband’s personal estate. (Harrison v. Peck, 56 Barb., 251.) About two years had passed after the assessment was made. She was aware that nothing had been then done to open and work the boulevard. No process had been or could be issued to collect the money of her personally. Yet she paid the money. The payment must be held to have been voluntary and she cannot maintain an action to recover it. “ "Where there is no mistake or fraud a voluntary payment cannot be recovered on the mere ground that the one party was under no legal obligation to pay and the other had no right to receive. Where a party would recover back taxes which he is under no legal obligation to pay, the payment must be compulsory.” (Dillon on Municipal Corporations, § 916.) “ Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary and cannot be recovered back.” (Dillon on Municipal Corporations, § 917.)
This doctrine would prevent the plaintiff maintaining an action to recover the money immediately after its payment; but it is claimed that the respondent, having neglected to open the boulevard for public use for more than six years after the proceedings were instituted to lay it out, it ceased to be a public street; and plaintiff relies to maintain this position upon chapter 311 óf the Laws of 1861. This act declares that “ every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall not be opened and worked within the like period shall cease to be a road for any purpose whatever.”
This statute does not apply to streets laid out in the cities of the State, and has been so held in the Matter of Lexington Avenue (29 Hun, 305, affirmed in 92 N. Y., 629). The public simply obtains the right of way to lands taken for highways in the towns of the State, the fee remaining in the owner. It is very proper, in case of these highways, that the public should proceed within a reasonable time to open and work them and prepare them for the public to use. Having only the right of way, they should be held *92to exercise it within a reasonable time or be deemed to have abandoned it; so that the owner of the fee, if the lands are not to be used for a highway, may use the land as before proceedings were instituted to -lay out the highway. The statute of 1861 fixes six years as a reasonable time; but in the case under consideration the respondent purchased and paid for and owns the land taken for the boulevard, in fee.
If the respondent should be held to have lost its interest in the premises by laches, the former owners cannot be said to have an equitable claim upon the lands so taken, except that which they have in common with the public.
Under the respondent’s charter its council are given power to lay out such streets in the city as, in their opinion, the public interests require. In the exercise of this power, cases may arise where it is proper to acquire land for a boulevard in advance of the time when the public interests require that it should be opened and worked.
This boulevard appears to have been laid out, in part at least, through farming land in the city. A section of the respondent’s charter provides for the laying out of streets by the common council. Another section says: “ The common council shall not open or work any street or alley, or make or ordain any work or improvement the expense whereof is to be defrayed, in whole or in part, by local assessment, except upon the petition of a majority of the owners of property to be assessed therefor, unless three-fourths of all the members elected to said common council vote therefor after allegations have been heard.” Contemplating that a street may be laid out and then at some future time opened and worked.
In this case only such sum as was necessary to lay out and pay for he land of the boulevard was assessed upon the property benefited. The money paid by the appellant was appropriated for that puipose. The owners of the property, which would be assessed for the expense of opening and working this boulevard, neglected to petition the council to proceed with the improvement, as they were authorized to do by the section of the charter above quoted. Had they presented such a petition a majority of the council could have ordered the boulevard opened. Without the petition it required a vote of three-fourths of the members to direct the work to be done. We may assume that the laying out and improvement of the boulevard *93would benefit tbe property in which appellant had an interest. If she could maintain this action and recover back the money paid by her, her property would receive the benefits of the improvement and escape paying for them, at least to the amount of money recovered. The owners of the property, which would be assessed for the expense of opening and working the boulevard, having failed to petition the council to order the work, should be held to have acquiesced in the propriety of the delay in opening the boulevard. If the public interests demanded the immediate opening of the boulevard, and the council, after having been properly petitioned, had failed to act, they might have been set in motion by mandamus.
The case of Bradford v. The City of Chicago (25 Ill., 411), relied upon by’appellant, is not in point. In that case the assessment was void. The city, notwithstanding, compelled its payment and neglected for four years to institute new proceedings and make a valid assessment. The court, therefore, decided that the city must be held to have abandoned the proceedings, and was liable in an action to recover the assessment paid. In the case at bar the assessment was valid, the. money collected was- used in purchasing land for the boulevard and the expenses of the proceedings taken to lay it out. Proceedings having now been instituted to complete the improvement, plaintiff’s land will soon receive the benefits arising from the opening of the boulevard.
If the view we have taken of this appeal is correct none of the exceptions of the appellant taken to the admission of evidence can avail her.
The judgment and order appealed from should be affirmed, with costs.
Smith, P. J., Barker and Bradley, JJ., concurred.Judgment and order affirmed.