The bill states that the complainant is the owner of a lot of land in-the city of Elizabeth; that the charter of the city provides for the assessment of the costs and expenses of regulating, grading and paving any street or section of a street in the city, or grading, graveling, flagging, macadamizing, or otherwise improving any street or section of a street, upon the owners of land and real estate on the line of the street or section of the street so improved, and for enforcing payment by sale of the property for a term of years, as well as by suit against the owner; that an assessment of A specified sum of money was laid upon ■the complainant’s property mentioned in the bill, for an improvement of part of a street on the line of which the property was situated, and that for non-payment of it the property was sold under the charter, and a certificate of the sale was given, which sale and certificate, the bill alleges, created a cloud upon the complainant’s title.
The bill then avers that the money was paid with the understanding and on the agreement that the city should retain so much thereof as it might be entitled to as the complainant’s proper share of the cost of the improvement, and return to him the balance, if any there should be, and that he has requested the city to ascertain the amount chargeable to him for the benefits, and to account with him accordingly; but that it has refused to do either, and claims the whole of the money as its lawful and just due.
The bill contains further averment that after the improvement was completed the city directed the city surveyor to make an equitable and just assessment therefor upon the owners of lands on the line of the improvement, and an assessment having been made, the city represented to the complainant that the sum charged against him was, with interest thereon, a just and equitable assessment, and a fair proportion of the cost of the improvement, and the bill then avers that relying on such representation and statement, and induced thereby, the complainant paid the money, but has discovered that the representation and statement were untrue, and that the amount charged against him was not a just and equitable assessment, and that neither the city nor its agents ever attempted to make such assessment; that the money which he so paid was and is greatly in excess of a just and equitable assessment, and that the defendant refuses to make such an assessment or return any part of the money.
The design of the pleader evidently was to present the claim of the complainant in three different phases, after the manner of the courts in a declaration in a suit at law. The first is, that it arose out of the stress of some illegal demand under which a cloud had been created on his title and an additional one was threatened. The second, that money was paid on an agreement to repay so much as should be in excess of the actual benefits] and the third that it was paid upon a misrepresentation that a just and equitable assessment had been made. It is merely a bill for relief against the assessment filed to obtain a return of part of the money paid. It was filed more than six years after the money was paid. It is almost needless to remark that if such a method of reviewing assessments and recovering back money paid on account of them is open to those who have in time past paid their assessments, an extensive field of litigation will have been discovered.
As to the first aspect of the claim, it presents nothing but the ordinary case of the payment of an assessment which the person assessed preferred to pay rather than litigate, or the case of payment of an assessment which the person assessed might have litigated successfully, but which, for want of knowledge that it was illegal, he did not litigate. If, under such circumstances, the money can be recovered back, there is no reason for a resort to equity j the remedy is at law.
As to the second phase, that there was an agreement that the city would return all the money paid over and above the complainant’s share of the cost and expense of the improvement, it appears by the bill that the city did, in fact, make an improvement. The bill states that the property was sold under the assessment, and it prays that the assessment may be set aside as illegal and void. If there was an assessment, the claim for the excess (if any of the money paid was the amount of the assess
The third aspect of the case is, under the averment, that there was misrepresentation that the assessment was just and equitable. This averment, like the others, was undoubtedly made with a view of enabling the complainant, under it, to contest the fairness of the assessment. But it is hardly necessary to say that this court will not enter upon the inquiry as to the fairness of a municipal assessment, whether it is just and equitable in its proportions, on the mere allegation that it is unjust and inequitable. Liebstein v. Newark, 9 C. E. Gr. 200; Jersey City v. Lembeck, 4 Stew. Eq. 238.
The demurrer will be allowed, with costs.
This decree unanimously affirmed, for the reasons given by the chancellor in the foregoing opinion. '