delivered a dissenting opinion to the effect that there being no evidence to show that the comptroller intended to pay Erben more than he was legally entitled to, and no evidence that the plaintiffs as a corporation ever recognized the payment, and since defendant testified, and the referee found that he believed, the full amount was due him by the report, it was apparent that the excess was paid in mistake of facts, and hence the last finding of the referee that plaintiffs voluntarily delivered the warrants in full knowledge of the matters stated in the report, could not be reconciled with the previous finding that the money was paid on an erroneous understanding of the amount actually awarded,* nor was it sustained by the evidence ; and hence it was a case for applying the rule that money paid in a mistake of facts may be recovered back; and that this claim could not be resisted by overhauling the award; although it was probable that defendant was not awarded as *261much as he should have been, and failed to have the error corrected on account of the erroneous information given him by the clerk.*
A majority of the judges concurred in affirming the judgment.
Judgment affirmed, with costs.
In Bentley v. Smith, vol. 1, p. 126 of this series, the finding was that the vendor made certain false representations to the purchaser, and that the plaintiff took from the purchaser an assignment of the contract, relying on them; and it was held that this was sufficient as a finding of fraud in the original contract, and of mistake in taking the assignment.
This opinion is printed in 38 N. Y. 309, where it was erroneously presented as the opinion of the court,