Decided: February 7, 1941.
JOSEPH MARGOLIS, PLAINTIFF-RESPONDENT,
INTERBORO HOLDING CORP., DEFENDANT-APPELLANT
On appeal from the Second District Court of the city of Paterson.
For the defendant-appellant, Benedict Krieger.
For the plaintiff-respondent, Louis C. Rosenthal.
Before Justices Bodine and Porter.
[125 NJL Page 615]
BODINE, J. The appeal is from a judgment in favor of the plaintiff. He had been the owner of property in Fairlawn sold for taxes. The defendant purchased the tax sale certificate. Plaintiff, having a contract to sell the property, desired to redeem. Defendant exacted $1,359.85, which included items to the extent of $47.44 to which it is said the defendant was not entitled. Payment was made under circumstances which the learned District Court judge found constituted duress.
The circumstances seem to have been that the plaintiff had to obtain title that day. But even so the situation was of his own making. Had he proceeded earlier he could have made redemption by paying the correct amount to the borough collector. N.J.S.A. 54:5-54. He was not obliged to pay the amount claimed, except for his own advantage. The assertions that the amount claimed was paid under protest made it no less voluntary for which there can be no recovery. McCrory Stores Corp. v. Braunstein, 99 N.J.L. 166. This is not the case of a payment of a tax under protest, but the payment of an amount of money claimed due. It is not necessary to determine whether the exaction was proper. When the plaintiff decided that he would not pursue his legal rights to settle the amount, he cannot claim that payment was under compulsion.
The judgment is reversed.