Plaintiff made his check, dated May 15, 1902, for eighty-three dollars and forty-three cents to pay his indebtedness to defendants Smith, Kinney & po. The check was not paid on presentation, and on May twenty-fourth was placed with R. G. Dun & Co., at Binghamton, for collection. Plaintiff resides, in Florence, Oneida county, and defendants in Binghamton, Broome county. The agent of Dun & Go. (Parsons) wrote to plaintiff requesting payment of the check, and receiving no response, gave the check to defendant S. M. Smith, an attorney at Binghamton, for collection. An action *479was brought upon the check on June twelfth. On June fifteenth the attorney, of his own motion, wrote plaintiff that the time to enter judgment would be July third, and that the costs would be nineteen dollars and sixty-two cents. Plaintiff did not reply to this letter, but on June thirtieth sent the letters of the attorney and of Parsons and one hundred and three dollars and five cents in currency to the defendants Smith, Kinney & Co., at Binghamton, by registered letter. The attorney, having no knowledge of the sending of the money, entered judgment by default on July third. It is found that the attorney acted in good faith. He is in no way related to or connected with the other defendants. The money sent by registered letter was received by the bookkeeper of the defendants Smith, Kinney & Co. on July first. At that time Kinney had left the city and did not return until the twelfth. Defendant Smith, his partner, was absent in the Adirondacks during all of July, and the other defendant Smith, a woman, gave no personal attention to the business. None of the defendants’ firm had actual knowledge of the sending or receipt of the money until on or after July twelfth.
Judgment was entered in Broome county July third, and a transcript filed in Oneida county for $105.43 on July fifth, but the deputy sheriff, calling on plaintiff, being told that this claim had been paid, took no proceedings to enforce the judgment. On July tenth the attorney, then for the first time learning of the payment, withdrew the execution and wrote plaintiff that the money sent by plaintiff was received by the bookkeeper in the absence of the members of the firm, and that the judgment would not have been entered if it had been sent to the attorney.
On August fifth the sheriff requested his fees from- the attorney, and on the sixth the attorney wrote plaintiff stating the fact that on payment of the balance of two dollars and twenty cents the judgment would be satisfied.
On August twelfth this action was brought against the attorney , and the members of the firm, and on September eighteenth the judgment was satisfied by the attorney on his own motion. No demand for the satisfaction of the judgment was ever made. The referee found that plaintiff was entitled to nominal damages of twenty-one dollars and costs.
*480The plaintiff was not entitled to recover, either at law or in equity. No cause of action was proven against the attorney. He had no knowledge, of payment and was not chargeable with any knowledge of the defendants or their agent or servant. He was bound in the discharge of his duty and for his own protection to enter judgment upon the failure of the defendant (the plaintiff here) to appear in the action. No argument should be needed to establish the attorney’s freedom from liability. This action being in form one in equity to remove a cloud upon title, plaintiff was bound to do equity himself, and could not hold the defendants responsible for a mistake which occurred through his own careless-less or willful act. It is quite evident that the judgment was entered without knowledge on the part of the attorney or of the agent of R. G. Dun & Go. who had the direct management of the collection of the claim that any sum had been paid. If the plaintiff had followed ordinary and usual business methods he would have sent the money to the attorney, or at least notified him of having sent it to the defendants; this would undoubtedly have prevented the entry of judgment.
It is true, perhaps, that defendants’ firm were bound by the acts of their agent, but a tender of the amount to the. bookkeeper would not have been a good tender. The bookkeeper had no knowledge, of the suit, and in the absence of instructions awaited the return of his principal. Were this condition brought about by the negligent or willful act of the defendants, they might be said to be ‘acting in bad faith, but no such charge is made, and it must be conceded that all of the defendants acted in good faith, but under a mistake of facts. Plaintiff himself, having brought about the condition, cannot charge defendants with the result. He was bound to do all within his power to. rectify his mistake. He could not, until a demand had been made upon the defendants to satisfy the jjudgment, and a refusal on their part to do so, charge them with bad faith, or any inequitable invasion of his rights. Plaintiff, failing in his right to equitable relief, cannot recover the damages if any were sustained. The award of damages is an incident to the enforcement of -equitable rights, but cannot of itself sustain a judgment in an equitable action. The equities falling the action must fail.
There was no evidence upon which to base a finding of damage. *481The referee finds the damages nominal (twenty-one dollars). An examination of the evidence satisfies us that there was no competent evidence upon which this finding could be based. But the referee has found that damages were only nominal. Therefore, the equities being against the plaintiff, the judgment already having been satisfied and the cloud upon the title removed, there was nothing for the referee to pass upon, and the complaint should have been dismissed upon the merits.
McLennan, P. J., concurred; "Williams, J., concurred in result; Spuing, J., dissented from that part of the decision which reverses the judgment as to all the defendants, except S. Mack Smith, in an opinion, in which Hiscock, J., concurred.