Opinion
Argued February 12, 1878
Decided February 19, 1878
Geo. F. Danforth, for appellant. W.F. Cogswell, for respondent.
If it was necessary in this case to decide the question whether the original defendants, having received the money claimed in this action under and by virtue of the decision of the surrogate, made in a matter within his jurisdiction could be considered as having obtained it by duress, the question would deserve serious consideration before deciding it for the plaintiff. The plaintiff paid the money and the defendants received it, after the surrogate had decided upon a hearing of all the parties that the defendants were entitled to it.
Both parties, after the decision, maintained their original position; the plaintiff claiming that the decision of the surrogate was erroneous, and that the defendants were not entitled to the commissions; and the defendants insisting that they were entitled to them, and that the surrogate's decision was correct. The plaintiff while this decision was in full force paid the commissions. The defendants were justified in receiving them, by the decision of the surrogate. Can it be said, under such circumstances, that they received them wrongfully, or that they obtained them by duress although the plaintiff paid them to obtain possession of the bonds? But we pass this point without further observation, as we think the case is with the plaintiff on the ground now to be stated.
The original decision of the surrogate was doubtless erroneous, and having been subsequently reversed and set aside, the plaintiff was then entitled to recover the money paid under the erroneous order. In Clark v. Pinney (6 Cow., 299), the court says: "That this action ( indebitatus assumpsit) lies in all cases where the defendant has in his hands money which, ex equo et bono, belongs to the plaintiff. When money is collected upon an erroneous judgment, which subsequent to the payment of the money is reversed, the legal conclusion is irresistible that the money belongs to the person from whom it was collected; of course he is entitled to to have it returned to him." The same principle is recognized in subsequent cases. ( Maghee v. Kellogg, 24 Wend., 32; Garr v. Martin, 20 N.Y., 306.)
And it is not necessary in order to maintain the action that the payment should have been coerced by execution. It is sufficient if it was paid after judgment or adjudication made. (1 Sta. N.P., 326, 357; Lott v. Swezey, 29 Barb., 87.) The original defendants were bound, therefore, to restore to the plaintiff the money received under the erroneous decision of the surrogate. But a demand before bringing suit was necessary in order to enable the plaintiff to recover upon this view of the case. If the original defendants are to be regarded as joint-debtors, and jointly responsible to the plaintiff, the demand made of George Hart Mumford would seem to have been sufficient to sustain the action against both. ( Geisler v. Acosta, 9 N.Y., 227; Blood v. Goodrich, 9 Wend., 68; Baird v. Walker, 12 Barb., 298; Com. Dig., tit. Condition L., 9.)
The action was brought against the original defendants as individuals, and not in their representative capacity as executors of George H. Mumford; and the complaint alleges that the money sought to be recovered was paid to the defendants, and a personal judgment was demanded against them. The defendants, in their answer, allege that the plaintiff "called upon the defendants and paid them" the money in question. We think the pleadings conclude the defendants from now raising the question that the defendants did not receive the money as individuals, and that the action could not be main tained against them personally to recover it. They had no right to take any charge or control of the bonds, as executors of George H. Mumford. (2 R.S., 449, § 11.)
The suit was properly revived against the executor of the survivor of the original defendants. ( Union Bank v. Mott, 27 N Y, 633.)
The judgment should be affirmed.
All concur.
Judgment affirmed.