Charles M. Higgins and Bruyn Hasbrouck were duly appointed as receivers of the Brooklyn Bank in the City of Hew York. The Brooklyn Bank was released from said receivership, and by the order of release allowances of $19,000 were made to each of the above-named receivers. Mr. Higgins thought these allowances excessive, and an appeal was taken to this court, where the same were reduced to $12,000 each, and the receivers were directed to return any part of the allowances in excess of this sum for the benefit of the Brooklyn Bank. Before this court had made its order reducing the allowances, the same had been paid, but Mr. Higgins had voluntarily relinquished the sum of $4,000 to the Brooklyn Bank, and had taken a release from that institution from all claims against him growing out of the receipt of the $19,000 allowed by the Special Term. This release is under seal, is very inclusive in its scope, and was evidently intended by the •Brooklyn Bank to close the affairs of the receivership in so far as Mr. Higgins was concerned. It appears from matters now before this court that Mr. Higgins had expended out of his own moneys something over $3,000 in a successful effort to set aside a contract which had been made by his coreceiver, and which was deemed prejudicial to the best interests of the receivership, and that, in making the settlement with the Brooklyn Bank, and paying over the $4,000, it was agreed between Mr. Higgins and the officers of the bank that Mr. Higgins should be allowed $3,000 on account of these expenditures, and that the release in question was designed to complete the transaction, and was regarded, with the $4,000 which was voluntarily *173returned, as the equivalent of the $7,000 excessive allowances made by the Special Term.
Hr. Hasbrouck appealed from the order of the Appellate Division reducing the allowances of the receivers, but this appeal was dismissed on the motion of Mr. Higgins, and thereafter the judgment of the Court of Appeals was made the judgment of the Supreme Court, and a new judgment was entered, by the terms of which Mr. Higgins was directed to return $3,000 in addition to the $4,000 which he had already surrendered, the judgment requiring Mr. Hasbrouck to return $7,000. Mr. Higgins subsequently moved at Special Term to modify the judgment determining the allowances so as to give effect to the release from the Brooklyn Bank. This motion was denied and an appeal was brought to this court, where it was held that under the circumstances the Special Term was justified in refusing the relief. Since that time, however, the true facts in the case have been brought to the attention of this court, and it does not seem to us fair or equitable that Mr. Higgins, who has done so much to preserve the assets of the Brooklyn Bank, and who has acted in good faith throughout the entire receivership, should be punished for his inadvertence in reference to his own affairs. He has, at no time, lost sight of the interests of the Brooklyn Bank; he has protected it against excessive allowances both to himself and his coreceiver, as well as to the counsel involved in the receivership, and, having relied upon his release and in this manner neglected to protect himself against the judgment, the Brooklyn Bank ought not to be permitted to take advantage of Mr. Higgins and compel him to stand the expenses growing out of his efforts to protect the bank. It does not seem necessary to require Mr. Higgins to go into a court of equity to prevent the working of this wrong. There is no question about the facts, and the simple modification of the judgment now under consideration will do substantial justice and it ought to be resorted to at this time.
The decree appealed from should be so modified as to relieve Mr. Higgins of the repayment of the $3,000 which he has expended, and for which the Brooklyn Bank has conceded its liability, without costs of this motion.
All concurred,' except Kellogg, J., dissenting in opinion.