Opinion
Argued October 7, 1890
Decided October 21, 1890
George Gorham for appellant.
Sherman S. Rogers for respondent.
Three questions are presented for consideration, and are determined as follows:
1. Plaintiff's acceptance of and subsequent compliance with the proposition of the defendant obligated the defendant to pay to it the face of the raised draft less $17, the amount for which it was originally drawn.
2. The subsequent transactions between the parties were in legal effect a rescission of such contract, and thus the plaintiff parted with its right of recovery thereon.
3. The action cannot be sustained as in effect one for money had and received, as it does not appear that defendant received moneys belonging to the plaintiff or to which it was entitled.
The defendant did not obtain plaintiff's money, but rather that of the Manhattan Company. As the plaintiff had not requested payment of it beyond the amount of $17, the sum paid in excess was the money of the Manhattan Company which it could have recovered of defendant but not of plaintiff. ( White v. C.N. Bank, 64 N.Y. 310.)
Subsequently, it is true, it charged the plaintiff in its account current with such amount, but the act was without authority and did not effect the legal status of the parties.
The order should be affirmed, and judgment absolute rendered in favor of the defendant on stipulation.
All concur, except BRADLEY and HAIGHT, JJ., not sitting.
Order affirmed and judgment accordingly.