Second Department, May, 1908. [Vol. 126. WALTER L. O'SHEA and G. HARRY O'SHEA, Respondents, v. Isaac MORITZ, Appellant. Second Department, May 1, 1908. Judgment-res adjudicata — determination without formal judgment— mechanic's lien — order that lienor be paid — accord and satisfaction. Where a defendant sued for the foreclosure of a mechanic's lien counterclaims damages for defects in the work and, after a trial of the issues resulting in a decision in the plaintiff's favor, moves with the consent of the plaintiff for an order that the recovery be satisfied out of moneys paid into court to discharge the lien, a subsequent action by the defendant to recover for the alleged failure of the plaintiff to perform is barred although no judgment or decree was entered upon the decision in the former action. Moreover, the final order entered upon consent of parties determining that the plaintiff was entitled to be paid in full out of the money deposited to discharge the lien is equivalent to a judgment and is res adjudicata as to the issues tried. Moreover, as the defendant acquiesced in the decision of the court and moved that the plaintiff be paid in full, it was an accord and satisfaction of his claim for damages by defective work. APPEAL by the defendant, Isaac Moritz, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 9th day of October, 1907. Robert A. McDuffie, for the appellant. William W. Wingate, for the respondents. JENKS, J.: The defendant appeals from a judgment of the Municipal Court in an action to recover damages for defects in his work under a contract between the parties. The contract was subordinate to a contract between the plaintiffs and a third party. This defendant filed a mechanic's lien which covered this work, and these plaintiffs sought to discharge the lien by a payment into court. Thereafter this defendant brought action in the Supreme Court on May 20, 1904, against these plaintiffs and the owner, to have his lien adjudged and to foreclose. Issue was joined and trial was had. The Special Term decided that the plaintiff must have recovery in full, without costs. Thereafter, upon consent of the attorney for the plaintiffs, and on motion of the attorney for the defendant, an order App. Div.] Second Department, May, 1908. was entered in that action that the city chamberlain pay the recovery in full out of the moneys deposited to discharge the lien. The order was complied with and the litigation was thus closed. It appears from the record before us that the present claim of the plaintiffs was heard, tried and disposed of on the merits in the Supreme Court, after a ruling that the defendant could establish it so as to lessen the amount of the plaintiffs' claim for full performance. The defendant in this action contended that the principle of res adjudicata applied. But the learned counsel for the respondents insisted that inasmuch as no judgment or decree was entered upon the decision of the Supreme Court this principle was unavailable. It is well settled that it is the judgment which constitutes the bar, not the preliminary determination of the court. (Rudd v. Cornell, 171 N. Y. 129, and authorities cited.) The reason is that there should be proof that there was finality to the former action which is pleaded as adjudication. But the omission to enter a formal judgment in the action in the Supreme Court was not due to the fact that any issue was undetermined or that aught remained to be done. Final judgment would have necessarily followed the decision rendered. But at the instance of the defendant in that action the parties acquiesced in the decision and dealt with each other as if final judgment had been formally entered. There are authorities to the effect that a verdict which has been paid is conclusive. (Willcocks v. Howell, 8 Ont. 576; Pollitz v. Schell, 30 Fed. Rep. 421, citing Catlin v. Taylor, 18 Vt. 104; Armstrong v. Colby, 47 id. 359.) But it is not necessary to rest upon these decisions, for the final order entered by the court in that action upon the consent of both parties had all of the effect of a judgment entered in the action, for it determined that the plaintiff was entitled to the full amount of his claim and the defendant was not entitled to any deduction therefrom by the reason of defective work. And the fact shown by it was that a litigation which involved this claim and wherein this claim was tried was determined on the merits wholly adverse to these plaintiffs. (See Otis v. Crouch, 89 Hun, 548, 551.) Moreover it may be inferred that but for the application of the defendants in that action to their opponent for consent to the entry of this order in the litigation which had the finality and full effect of a judgment, and the entry of that order, the plaintiff would have Second Department, May, 1908. [Vol 126. entered the judgment as of right. I think then that we should be deaf to the contention that the order had not the effect of a final judgment so far as the doctrine of res adjudicata is concerned, and permit these plaintiffs to try again a question which was settled against them and which they affirmatively accepted as a finality, renouncing their right of appeal. Further, the litigation before the Supreme Court in effect presented a claim by the plaintiff in that action for the contract price for work done and a claim by the defendants in that action that they were damaged by defective work. I think that the acquiescence by the defendants in the decision by the Supreme Court, as indicated by their affirmative entry of the order which practically ended it wholly in favor of the plaintiff in that action, coupled with the action of that plaintiff, constituted an accord and satisfaction. (Foster v. Trull, 12 Johns. 456, cited with approval in Davis v. Spencer, 24 N. Y. 391; Vedder v. Vedder, 1 Den. 257; note to Boosey v. Wood, 3 H. & C. [Exch.] 484; Willcocks v. Howell, supra.) I advise that the judgment be reversed, with costs, and that judgment be ordered for the defendant, with costs. WOODWARD, HOOKER, GAYNOR and MILLER, JJ., concurred. Judgment of the Municipal Court reversed, with costs, and judgment ordered for the defendant, with costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. J. ESLER ECKERSON, Relator, v. THE BOARD OF EDUCATION and the TRUSTEES OF UNION FREE SCHOOL DISTRICT NO. 1 OF THE TOWN OF HAVERSTRAW, ROCKLAND COUNTY, NEW YORK, Respondents. Second Department, May 1, 1908. refunding excessive school tax-retroactive statute construc Section 256 of the Tax Law, as amended by chapter 721 of the Laws of 1907, pro viding in substance that when a tax shall have been levied and collected in a school district on an assessment, the value of which has been ascertained from the town assessment roll and such assessment roll has been adjudged to have App. Div.] Second Department, May, 1908. been erroneous, the trustees of the school district shall allow the person taxed the amount paid by him in excess of the proper tax, with interest, is retroactive. Hence, a person who by certiorari under chapter 269 of the Laws of 1880 has secured a reduction in valuations made by town assessors is entitled to a refund of a part of the school taxes subsequently paid, although at the time the school tax was paid the act of 1880 had been repealed by the Tax Law. Such taxpayer is not estopped from recovering a portion of the school tax, although under section 68 of title 7 of chapter 555 of the Laws of 1864, then in force, he had an opportunity to review the school tax of which he did not avail himself, for chapter 721 of the Laws of 1907 affords a new statutory scheme for the refund of excessive payments. Nor is he estopped because his payment was voluntary, as the mere fact that the payment of a tax is voluntary does not debar the Legislature from providing for the refund of that part which is excessive. The Legislature has power to authorize the refunding of an excessive tax by retroactive statute. Although the practical effect of an act may be considered by the courts in arriv ing at the legislative intent, they cannot under the guise of interpretation nullify or limit a statute because they may not approve of its policy or scope. Legislative policy is not the concern of the courts so long as an enactment is within the Constitution. The courts must enforce the provision of said statute allowing interest on the amount refunded, although the effect thereof is to give an interest-paying investment to the person taxed. Said statute of 1907 requiring the refunding of an excessive school tax is not unconstitutional as imposing upon one person the debt of another, for taxes are not to be regarded as debts within the constitutional prohibition, and even if so considered the statute merely returns to the debtor the excess paid over that due and does not make a donation or gift. Said statute of 1907 is not obnoxious to section 6 of article 7 of the State Constitution prohibiting the allowance of stale claims against the State. CERTIORARI issued out of the Supreme Court and dated the 6th day of January, 1908, directed to The Board of Education of Union Free School District No. 1 of the Town of Haverstraw, etc., and to Alonzo Wheeler and others, as trustees of said union free school district, etc., directing them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in relation to the rejecting of certain claims for a refund of a part of school taxes. Ralph E. Prime, for the relator. William McCauley, for the respondents. Second Department, May, 1908. [Vol. 126. JENKS, J.: The valuations of the realty as a basis for these taxes were ascertained and were taken by the board of education as required by law (Laws of 1864, chap. 555, tit. 7, § 67; Id. tit. 9, § 10, as amd. by Laws of 1884, chap. 49, and Laws of 1886, chap. 595) from the last assessment roll of the town made by the town assessors. These taxes were assessed in 1886 and 1887, and were paid on November 1, 1886, and on October 15, 1887, respectively. In September, 1886, and in September, 1887, respectively, the owners of the realty obtained a writ of certiorari under chapter 269 of the Laws of 1880 to review the valuations of the town assessors for those years, and thereby secured final orders or judgments for substantial reductions in such valuations. The claims which are the subject of the writ now before us were presented to the board of education and the district trustees in November, 1907, under section 256 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 721 of the Laws of 1907, which reads: "3. When a tax shall have been levied and collected in any school district of this State upon any property within such district on any assessment value thereof which shall have been ascertained from a town assessment roll and which assessment upon such town roll shall have been ordered, adjudged or determined by order of the court as aforesaid to have been illegal, erroneous or unequal and which assessment though made by town assessors was adopted and was used in such district for the purpose of taxation for school purposes, then and in such case the trustees of such school district shall audit and allow and cause to be paid to the petitioner, or other person who shall have paid such tax, the amount paid by him in excess of what the school tax would have been in such case if the assessment had been made as ordered, adjudged or determined by such order of the court, together with interest thereon from the date of the payment. "Application to the proper officer for the audit and allowance of such moneys must be made by the petitioner or other person paying such tax as follows: Where the writ of certiorari was issued pursuant to chapter two hundred and sixty-nine of the laws of eighteen hundred and eighty, and such tax shall not have been heretofore refunded, such application must be made within three years from the passage of this act. When the writ of certiorari was issued |