Koewing v. Town of W. Orange

• Decision Date: 20 November 1916
• Citation: 89 N.J.Law 539,99 A. 203
• Parties: KOEWING v. TOWN OF WEST ORANGE.
• Court: New Jersey Supreme Court

99 A. 203

89 N.J.Law 539

KOEWING

v. TOWN OF WEST ORANGE.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

(Syllabus by the Court.)

Bergen, White, and Williams, JJ., dissenting.

Appeal from Supreme Court.

Action by Jessie Koewing against the Town of West Orange. From an order striking out the complaint, plaintiff appeals. Affirmed.

Edwin T. Murdoch, of New York City, for appellant. Simeon H. Rollinson, of Orange, and Borden D. Whiting, of Newark, for appellee.

WALKER, Ch. Action was brought in the Supreme Court by Mrs. Koewing against the town of West Orange to recover the sum of $1,455.92, collected by the town from her for taxes, and which collection she avers was made upon wrongful and unlawful duress and compulsion. The complaint, on motion, was struck out.

A motion to strike out a complaint under Practice Act 1912, for want of showing cause for action, is the equivalent of a demurrer in the former practice. A demurrer only admitted facts well pleaded, and not conclusions of law arising from the facts stated. Tinsman v. Bel. Del. R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565. See, also, Coxe v. Gulick, 10 N. J. Law, 328; Davis v. Minch, 80 N. J. Law, 214, 76 Atl. 328.

Among the six reasons upon which the motion to strike out was grounded, one was that the complaint showed the taxes to have been paid voluntarily, and did not show compulsion. If this contention be sound it is alone sufficient to sustain the order appealed from. That order recites that the complaint does not disclose any cause of action.

The complaint contains five counts. They are very voluminous, the first one being divided into 33 paragraphs; the second into 7; the third into 10; the fourth into 5; and the fifth into 5.

The complaint shows that the taxing authorities of the town having increased the assessed valuation of Mrs. Koewing's property, she appealed to the county and state boards and the valuation was reduced. Still being dissatisfied she prepared to appeal from the reduced valuation, but in treaty with the town it was agreed that she should let the valuation stand and pay $4,657.60, the face amount of the taxes due, and the town would waive the interest and costs thereon, amounting to $678. She paid the $4,657.60, which the town accepted and used. The collector, however, disobeying instructions from the town authorities, credited the amount on taxes and costs for part of 1905 and for 1906, 1907, and 1908. This left an apparent balance of taxes for 1905 of $678, which would carry interest at 12 per cent. In 1915 the town notified Mrs. Koewing to exercise her right to redeem her property from the lien of the balance within 60 days, or, on failure thereof, she would be forever barred and the premises would become the town's property by operation of law. The sum demanded was $1,455.92, which was the tax balance of $678, with interest added.

To avoid loss in the event of unsuccessful litigation Mrs. Koewing alleges that she paid the abovementioned sum of $1,455.92 "under duress and compulsion," protesting that she owed nothing, and sued to recover the amount so paid. It was the complaint in the suit for its recovery that was struck out by the Supreme Court on the ground that it did not show cause for action, and from that order she has appealed to this court.

The facts above recited are from the first count in the complaint. The second and third ones recite different proceedings looking to an adjustment of the matters in controversy between the parties, and the fourth and fifth ones advance different theories upon which the plaintiff claimed recovery upon the facts stated. The last four counts claim different sums as damages, according to the theory of the various counts. It is not deemed necessary to epitomize them here.

The gravamen of the whole complaint is, that the payment of the $1,455.92 was not voluntary, but was the result of duress and compulsion. The only question necessary to be decided is as to whether or not payment by the plaintiff was procured by the defendant "under duress and compulsion" as the plaintiff herself puts it, for if the payment were voluntary, and not the result of unlawful compulsion, the...