
    Esther Schulman, Respondent, v. Samuel Kutler and Another, Appellants.
    Second Department,
    March 31, 1910.
    Money had and received — action by grantee to recover overpayment — facts not justifying recovery.
    Action by a grantee against her grantor for money had and received. The plaintiff claimed that she overpaid the defendant in that taxes on the land had not been paid contrary to statements in an affidavit delivered by the defendant at the time of the conveyance. Evidence examined, and held, that the plaintiff, who in turn conveyed the lands, had merely taken title for another person, so that she was not the real party in interest and had conveyed subject to the taxes and had not suffered any loss.
    Appeal' by the defendants, Samuel, Kutler and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff rendered on the 18th day of November, 1909.
    
      Abraham I. Danish, for the appellants.
    
      J. J. Kramer, for the respondent.
   Per Curiam :

On May 1, 1909, defendants executed and delivered a deed purporting to convey to the plaintiff the premises known as No. 124 Cherry street in the borough of Manhattan. The deed expressly recited that the property was conveyed “subject to all incumbrances now on the premises.” At that time the taxes fqr the year 19.08, amounting to $468.08,. were unpaid. Simultaneously with the delivery of the deed defendants signed and delivered a paper which was in form an affidavit which contained, among other things, a statement that the premises were free and clear of all taxes, Plaintiff now brings this action for money had and received by the defendants, claiming that because of that statement she paid to them $468.08 more than she otherwise would have done.

Plaintiff fails to establish that she paid to the defendants that or any other sum of money. The only witness called for the plaintiff was one of the brokers who negotiated the transfer for her, who proved the execution of the paper called an affidavit, and testified that the defendants said that the taxes were paid. Plaintiff was called as a witness for the defendants. The deed which was offered in evidence recited a money consideration of $100. Plaintiff testified that she did not know what she paid for" the property. She testified that at the -date of the trial she was still the owner of the property and in possession of it.- Subsequently when a deed executed by her and dated on the seventh of' May was put in evidence which conveyed the property, she admitted that she did not know anything about the transaction and testified that she was not present when the property was conveyed to her. Prom her evidence it. is quite apparent that she was only a dummy for some one else and not the real party in interest. The deed by her expressly conveys the property subject to the taxes. There is not a particle of evidence that she has suffered any loss. ‘

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event..

Jenks, Burr, Thomas, Rich and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  