We need add but little to'the satisfactory opinion of Pryor, J.,* upon the demurrer to the original complaint. The present defendants, in their action against the city, claimed the damages in their own right. The present plaintiffs say that these damages were clearly theirs. But that does not help them. If they were entitled to these damages, their rights were not affected by the payment to the defendants. If they have a just claim against the city, they can still assert it. The payment to the defendants was not to their (plaintiffs’) use, but, as they insist, to the defendants’ sole use, and, therefore, wrongful. It is well settled, under such circumstances, that an action for the sum paid will not lie by the party really entitled to it against the party who recovered it in his own right. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 450 ; Rowe v. The Bank, 51 id. 674 ; Decker v. Saltzman, 59 id. 275; Peckham v. Van Wagenen, 83 id. 40 ; Sergeant v. Stryker, 32 Am. Dec. 404.)
*529The plaintiffs now abandon the contention that this is an action for money had and received tó their use. They say that they elect to make the defendants their agents for the collection of their damages, and that they ratify said collection, although it was wrongful.. This they call an action on the case. It has none of the elements of such an action. There is such a thing as affirming or disaffirming the unauthorized acts of one’s agent, but there must first be an. agency. There is no such thing as creating an-agency contrary to the fact by a process of election. The pleader must have been thinking of the. equity principle which sometimes converts a party into a trustee ex maleficio. Here, however, there was no trust- or agency,, and there were no facts upon which any such relation could reasonably be asserted. As was said by Parker, J., in Patrick v. Metcalf (supra), “ There is no ground for making defendants trustees of the money for the plaintiffs.” Still less agents. The defendants claimed what in their view was their own. That claim was necessarily in hostility to any other claim to the same demand. *530The rights oí the parties run upon different lines. These lines do not .converge either in law or fact.
It may be added that it is by no means certain that the plaintiffs were entitled to these damages. The complaint avers that the recovery against the city was for the use and occupation of the pier for the purpose of a dump, and for the consequential loss of wharf-age. Whatever may have been the form of that action, it necessarily proceeded upon the diminution of rental value by reason of the nuisance. The nuisance was upon the property when the present plaintiffs leased it, and they undoubtedly paid less rent in consequence of its probable continuance. That being the case, the lessors were entitled to recover for such diminution in rental value. (Kernochan v. The N. Y. El. R. R. Co., 128 N.Y. 559.) The action in which the damages were recovered was substantially the same as that referred to in the lease. It may have been different in form, but it sought redress for the wrong done by the dumping board. Whether such redress was obtained in one form of action or another is unimportant.. However, the real damages, namely, the diminution in rental value, may have been asserted and recovered, whether such diminution was called damages for loss of wharfage or damages for loss of wharfage rent, the practical result was the same. It follows that if the claim was asserted and recovered because of the loss rea,lly sustained by the' lessors, they were acting rightfully in their own behalf. Whether acting rightfully or wrongfully, however, the plaintiffs have lost nothing to which they were legally entitled, and their present action must fail.
The judgment appealed from must be affirmed, with costs.
Van Brunt, P. J., Rumsey, WilliaSis and Patterson, JJ., concurred.
Judgment affirmed, with costs..
The following is the opinion of Judge Pryor
Pryor, J.:
In substance the complaint states: A lease by defendants to plaintiffs of piers in Bast river, and actions by defendants against the city of New York for injury to the piers, and judgment in their favor for the sum of $52,330.01, damages they had sustained by the injury to. the piers, the wrongful receipt of this money by the defendants, because the money so received by them embraced the damages occasioned to the plaintiffs by the injury to the piers ; a demand of judgment for a sum equivalent to the damages sustained by the plaintiffs from the injury to the piers.
The concession in the complaint that the money recovered by the defendants was for the damage they had sustained by the injury to the piers is at once fatal to the complaint, since it admits that the money was not received to the plaintiffs’ use, but in reparation of a wrong the defendants themselves had suffered; and so the defendants are not bound ex (zguo et hono to refund to the plaintiffs The action for money had and received, proceeding upon equitable principles, is defeated by an equal equity in the defendant; and he is never held to return what he may keep with a good conscience. (2 Greenl. on Ev. § 117; note to Kingston Bank v. Etlinge, 100 Am. Dec. 523; Buel v. Boughton, 2 Den. 91, 98; 4 Wait’s Act. & Def. 511.)
As this allegation in the complaint may have been unnecessary and inadvertent, and as it is desirable to dispose of the demurrer upon grounds which no amendment may obviate, I shall assume the pleading to state the transaction in the aspect most favorable to the plaintiffs, namely, that the city of New York was liable to the plaintiffs in the sum they,demand for injury to their interest in *529the piers, and that this sum the defendants have received from "the city upon an invalid claim that it was due to them. Still the action is untenable.
The principle decisive of the case is, “ that if two or more independent claimants * ** * apply to the debtor for payment, and the debtor pays the claimant not entitled thereto; the unsuccessful claimant cannot maintain an action for money-had and received against the successful claimant to recover the money so paid. * * * If, however, the payment, though made to the wrong person, operates as a payment of the claim, so that the rightful claimant can no longer assert his claim against the party paying, then it would seem that the defendant has in fact received money which belonged to the plaintiff, and that the plaintiff should beallowed to recover the money so paid.” (Keener on Quasi Contracts, 168.)
That the city’s liability to the plaintiffs was not discharged by the payment to the defendants is settled by conclusive authority. (Atlantic Dock Co. v. Mayor, etc., 53 N. Y. 64; Rowe v. Bank, 51 id. 674; Hathaway v. Town, 54 id. 655; Sergeant v. Stryker, 32 Am. Dec. 404, 405.)
This being so, the invalidity of the plaintiffs’ contention is clear beyond controversy. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 450; Rowe v. The Bank, 51 id. 674; Hathaway v. The Town, 54 id. 655; Decker v. Saltzman, 59 id. 275; Peckham v. Van Wagenen, 83 id. 40; Fox v. M’Comb, 18 N. Y. Supp. 611; Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 id. 337 ; Hall v. Carpen, 27 Ill. 386; 29 id. 512; Kelley v. Lindsey, 7 Gray, 287; Sergeant v. Stryker, 52 Am. Dec. 404, a case identical in principle with the present, and instructive in its exposition of the.action for money had and received.)
Demurrer sustained, and judgment for defendants.