
    M. E. Bower et al., Resp’ts, v. Edwin B. Thompson, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Mistake—Money paid by—Demand.
    Where an overpayment of money has been made by mistake of the party paying, and the other party knew at the time that he was receiving money to which he was not entitled, the obligation to refund arises on the instant the money was received and no demand is necessary before suit to recover the same.
    Appeal from judgment of the county court of Cayuga county, affirming as modified a judgment of a justice’s court.
    Action to recover $25, money paid on hay and overlooked by mistake in settlement, and for $2.61 for plaster.
    The following is the opinion of the county judge s
    Underwood, 0. J.—The" payment of $25,00 by plaintiffs to ■defendant May 5th, 1888, on account of hay. sold by him to them, and the fact that this item was overlooked, and no credit given plaintiffs for it in the subsequent settlement between the parties, is not seriously questioned.
    As defense to this item, defendant relies upon the theory that the mistake was mutual, and that recovery could not be had without demand previously - made. Mayor v. Erben, 3 Abb. Ct. App. Dec., 255.
    The circumstances rather indicate to me that this case is to be governed by the rule laid down in Sharkey v. Mansfield, 90 N. Y. 228, and that the defendant knew at the time of the settlement that he was receiving twenty-five dollars he was not entitled to. He does not deny that he knew he had been overpaid. He simply testified that he never heard of any account they, the plaintiffs, had against him until the commencement of this suit The burden of proof was on him to show that he was not aware of the overpayment at the time it was made, and his evidence, it seems to me, falls far short of this.
    For the item of $2.61 for plaster, claimed to have been sold defendant, there was absolutely no evidence to sustain a recovery against him, except the fact that the item was charged to defendant on plaintiffs’ books. One of the plaintiffs testified he made the charge, but neither he nor his partner testified to a sale and delivery of the plaster to the defendant, nor did they offer any evidence upon the subject, beyond the entry in their books, or offer any explanation of their neglect to furnish proof of an. actual sale.
    Defendant positively denied having bought or authorized any one else to purchase any plaster of plaintiffs. While the books-were admitted in evidence without objection, no proper proof had been made authorizing their reception; and under all the circumstances I do not think plaintiffs should have been allowed to recover for this item.
    Plaintiffs’ recovery should have been limited to the item of twenty-five dollars, with interest from May 5th, 1888, to April 4th, 1891, $29.37 damages and four dollars costs; in all $33.37.
    
      W. T. Parker, for app’lt; H. E. Hills, for resp’ts.
   Dwight, P. J.

The action, so far as presented by this appeal,, was for money had and received, being the sum of twenty-five dollars paid to the defendant by the plaintiffs a second time, by mistake of the latter. The only defense here suggested was the absence of a demand before action brought. Whether the defense was tenable depends upon whether the mistake was mutual and the over payment innocently received by the defendant; or whether it was by mistake of the plaintiffs, only, and the defendant knew, at the time, that he was receiving money to which he was not entitled. In the former case the obligation to refund did not arise until notice of the mistake and a demand of repayment, Mayor v. Erben, 3 Abb. Ct. App. Dec., 255; Southwick v. First Nat. Bank of Memphis, 84 N. Y., 430; in the latter, it arose upon the instant the money was received. Sharkey v. Mansfield, 90 N. Y., 228. The distinction and the reasons for it are obvious.

In his opinion the learned county judge saj^s the circumstances-indicate to him that the case is governed by the authority last cited, “ and that the defendant knew at the time of the settlement that he was receiving twenty-five dollars that he was not-entitled to.”

Such it may be presumed was also the effect of the testimony upon the mind of the justice; and, the case is not one in which, either the county court or this court should interfere with the conclusion of fact That conclusion does no violence to the evidence, even as it appears more or less imperfectly reproduced in the return, while the'justice had the advantage of hearing the full oral testimony of the parties and observing their appearance on the stand.

And the fact being found that the defendant knew at the time-of receiving the over payment that it was such, the case was within the second category above described, and no demand was necessary to recover the amount.

The judgment appealed from must be affirmed.

Judgment of the county court of Cayuga county affirmed, with costs.

Macomber and Lewis, JJ., concur.  