Duncan v. Berlin

Decided September 15, 1871

New York Court of Appeals · decided 1871-09-15

This action was brought by Duncan, Sherman & Co., to recover one thousand dollars, paid under a mistake to the deputy sheriff, in an attachment suit in which the present defendants, Jacob Berlin and others, were plaintiffs. In January, 1866, a suit was commenced in the supreme court by Berlin and others against Hamilton Blagge & Co., to recover about sixteen hundred dollars.

Decided 1871-09-15

Rapallo, J.

¶1It was not made to appear that the defendants would, in refunding the money, be in any worse position than if it had never been paid.

¶2The plaintiffs supposed they had funds of Blagge & Co., which in fact they had not, and the money was paid and received as funds of Blagge & Co.

¶3Negligence in making the mistake does not prevent the party paying from recovering back the money, if the other party has not been prejudiced.

¶4The defect of parties is not such as could be taken advantage of in the absence of any objection by demurrer or answer. The fees of the sheriff, in so far as • they were increased by the payment of the thousand dollars, should be allowed to the defendants.

¶5The judgment should be reversed and a new trial ordered, with costs to abide the event.