[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 307
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 308
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 309 After setting forth the general facts of the case in their complaint, the plaintiffs close by alleging, that, at the defendants' request, they paid the defendants for such damages the sum of $24,805. They further allege that the said payment was made under a mistake of fact on the part of the plaintiffs, and under the supposition that the sum above mentioned was the sum of the payments to which the defendants were entitled, under and by virtue of the report of the commissioners of estimate and assessment. In his answer, the defendant, Erben, among other things, says, that he received the sums mentioned under the full belief that the same was the amount awarded to him by the said report over and above any incumbrance upon the premises, and he insists that the same was such amount. He further insists, that the same was so paid and received as waiver by all parties of all objections to the said report, and with full knowledge that such sums were rightfully payable, if erroneously stated in several parts of said report, and with intent to consummate the duty and purpose of said commissioners, whether correctly expressed in said report or by mistake erroneously stated therein.
The commissioners awarded to the defendant, Erben, the sum of $15,755. He received from the comptroller of the city warrants to the amount of $24,805, upon which the money was paid to him. The referee finds, that Erben believed that amount was due to him when it was thus received. The plaintiffs, in their complaint, allege that the excessive payment was an error on their part, and there is nothing in the evidence to indicate that such is not the fact. There is not the least evidence to show that the comptroller intended to pay Mr. Erben a dollar more than he was legally entitled to. To have done so would have been a violation *Page 310 of his duty. There is no evidence that the plaintiff, as a corporation, ever recognized such action. The defendant testifies, and the referee finds, that he believed that amount to be due to him by the report, as it was paid to him. It is thus apparent that the excess over $15,755 was paid to the defendant in mistake of the facts.
I cannot understand how the referee could have reached the conclusion, that the plaintiff voluntarily delivered the warrants to the defendants in the full knowledge of the several matters stated in the report of the commissioners. I am not able to reconcile it with the previous finding that the money was paid upon an erroneous understanding of the amount actually awarded to Mr. Erben, nor do I see any warrant for it in the evidence. No witnesses on either side gives any testimony from which such a conclusion can be drawn.
The plaintiff and the defendant mutually supposed that the report of the commissioners which had been confirmed by the Supreme Court and filed, awarded to the plaintiff the sum of $24,000, and that sum was thereupon paid to him. For the money thus received in excess of the amount actually awarded, the defendant would no doubt be prima facie liable to respond to the plaintiff. The general rule is clear, that money paid in a mistake of facts as to what both parties were bound to require, may be recovered back. (Bank of Commerce v. Union Bank, 3 Comst. 230; Canal Bank v. Albany, 1 Hill, 287; Whedon v.Olds, 20 Wend. 174.)
In answer to this demand, the defendant insists that this is in substance an action for money had and received to the use of the plaintiffs, in which action it is said, the most liberal rules prevail, and in which the defendant may interpose every equitable defense, and may shield himself by anything which shows that, exequo et bono, the plaintiff is not entitled to recover. This is true. The defendant further insists that the evidence introduced by him shows, that upon these principles the plaintiffs cannot here succeed. He has proved, as he says, by indisputable evidence, that the property appropriated under the proceedings to extend Canal street was worth the full sum he has received for it, and *Page 311 that, upon application at the commissioners' office, he was informed by them and afterward by their clerk, that about the sum received by him had been actually awarded to him. It is quite probable that the defendant was not awarded as much as he should have been, for his lots on Center street. and it is equally probable that he failed to have that error corrected, on account of the erroneous information given to him by the clerk at the office of the commissioners. This is unfortunate, but it cannot aid the defendant here. The whole proceeding of the commissioners is judicial in its character, is subject to review and correction in the Supreme Court, and is finally made a part of the records of that court. To overhaul judgments thus established, upon the ground that a clerk or an officer in the commissioners' office, upon whose statement of their contents a party had relied, instead of making a personal examination of the record, had incorrectly stated their contents, could not be tolerated. Nor will it aid the case to allege that in fact the defendant was not awarded as much for his lots as he ought to have been. Neither the referee nor the Superior Court nor this court has jurisdiction in this action to examine that question. It is intrusted by law to the commissioners solely, subject to an appeal to the Special Term of the Supreme Court, and no other judge, jury, court or referee has the slightest authority to examine into the matter.
The plaintiffs were entitled to a recovery against Mr. Erben, and a new trial must be ordered as to him. Judgment as to the Life Insurance and Trust Co. should be affirmed.
Judgment accordingly. *Page 312