(concurring). If the amount paid by the plaintiff as a fine were recoverable at all for the reason that the magistrate who imposed the same had no jurisdiction to do so, the *173action, could only be maintained on the theory that it is founded on a quasi contract as distinguished from an implied contract, and in that view I concur in the opinion of Mr. Justice Greenbaum to the effect, first, that the Municipal Court has no jurisdiction to entertain such an action, and second, that the decision in Dechen v. Dechen, 59 App. Div. 166, is not to be construed into an authority for the proposition that the Municipal Court has jurisdiction of a case resting solely upon a quasi contract.
But I am further of the opinion that, upon the facts in this case, no action for the recovery of the fine can be maintained in any court, and upon this branch of the case I concur in so much of the opinion of Mr. Justice Clarke which is to the effect that ■the plaintiff failed to show duress and only showed voluntary payment of the fine under ignorance or a mistake of law, and that money so paid cannot be recovered without statutory aid. To the cases cited by Mr. Justice Clarke I desire to add the case of Newburgh Savings Bank v. Town of Woodbury, 173 N. Y. 55, in which the point that no action will lie to recover money paid under a mistake of law was elaborately discussed. In the case at bar the plaintiff had been lawfully arrested and brought before the magistrate and the magistrate had acquired jurisdiction over plaintiff’s person, and upon proof of probable cause the magistrate might well have held the plaintiff for trial at the Court of Special Sessions. In trying and fining the plaintiff upon the mistaken idea that he had authority to do so, the magistrate, it is true, exceeded his jurisdiction as was subsequently decided in another case. But the plaintiff acquiesced in the sentence imposed upon him and voluntarily paid his • fine. No appeal was ever taken. For all that appears, therefore, there was nothing but a mistake of law on the part of both the plaintiff' and the magistrate.
The judgment must be affirmed, with costs.
Judgment affirmed, with costs.