
    Hipolito Dumois et al., App'lts, v. William Hill et al., Resp'ts.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      Filed March 20, 1896.)
    
    Money had and deceived—Invalid claim.
    An action will not lie for money paid to the defendants not for plaintiff’s use hut for their own use, though the plaintiffs are really entitled to it. as against the defendants.
    Appeal from an interlocutory judgment, sustaining a demurrer to the first cause of action in the amended complaint.
    Plaintiffs’ first cause of action alleges that the defendants leased to the plaintiffs and other parties all their interest in the easterly half of pier 12, Bast river, and in the whole of pier 13, Bast river, together with all their rights of wharfage and cranage, and all other rights connected with the use of said piers, for a period of five years from January 1, 1891; that, previous to the execution of this lease, the city had unlawfully erected and maintained, upon the westerly half of pier 12, a nuisance, namely, a dumping board; that an action, brought by the lessors, was then pending to compel the city to remove this dumping, board; and that the lease contained a covenant that nothing therein should prejudice or affect that suit. The complaint then goes on to state that the plaintiffs are the successors in interest of all the other parties, who were originally lessees; that," since the execution of the lease, to wit, on January 6, 1894, the defendants, without the knowledge of the plaintiffs, commenced an action against the mayor, aldermen, and commonalty of the city of New York to recover damages “ for the use and occupation of the easterly half of said pier 12” by the street-cleaning department for the purpose of a dump, claiming that they were entitled to wharfage accruing from the easterly half of said pier 12, and to one-half of the wharfage accruing from the outermost end of said pier, and charging that the city had erected upon the westerly half of the said pier a dumping board, which diminished the wharfage which would otherwise have accrued to them, etc. It further avers that the complaint in said latter action alleged that the present defendants were entitled to the wharfage for the easterly half of said pier, whereas the present plaintiffs were so entitled from and after January 1, 1891, when their lease began; that this action was settled by a payment of $400 a month from May 1, 1885, to January 1, 1894, with interest on the payments from their respective dates, and on the whole sum from January 1, 1894; and that $14,400 of this amount, or the payments accruing from January 1, 1891, to January 1, 1894, represented damage suffered by the plaintiffs, and was paid to the defendants to and for their, use. What became of the original suit referred to is not stated. .The judgment demanded was $14,400, with interest on $400 from February 1,1891, and from the first of each succeeding month during said period, and on the whole amount, with the interest already accrued, from January 1, 1894. This cause of action was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action.
    Henry W. Goodrich, for app’lts; Thomas G. Shearman, for resp’ts.
   BARRETT, J.

We need add but little to the satisfactory opinion of Pryor, J., upon the demurrer to the originial complaint. 32 N. Y. Supp. 164. The present defendants, in their action against the city, claimed the damages in their own right. The present plaintiffs say that these damages were clearly theirs. But that does not help them. If they were entitled to these damages, their rights were not affected by the payment to the defendants. If they have a just claim against the city, they can still assert it. The payment to the defendants was not to their (plaintiffs’) use, but, as they insist, to the defendants’ sole use, and therefore wrongful, It is well settled, under such circumstances, that an action for the sum paid will not lie by the party really entitled to it against the party who recovered it in his own right. Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 N. Y. 450 ; Rowe v. Bank, 51 N. Y. 674; Decker v. Saltzman, 59 N. Y. 275; Peckham v. Van Wagenen, 83 N. Y. 40; Sergeant v. Stryker, 32 Am. Dec. 404.

The plaintiffs now abandon the contention that this is an action for money had and received to their use. They say that they elect to make the defendants their agents for the collection of their damages, and that they ratify said Collection, although it was wrongl’ul. This they call an “action on the case.” It has none of the elements of such an action. There is such a thing as affirming or disaffirming the unauthorized acts of one’s agent; but there must first be an agency. There is no such thing as creating an agency contrary to the fact by a process of election. The pleader must have been thinking of the equity principle which sometimes converts a party into a trustee ex maleficio. Here, however, there was no trust or agency, and there were no facts upon which any such' relation could reasonably be asserted. As was said by PAEKEE, J., in Patrick v. Metcalf, supra, •“ there is no ground for making the defendants trustees of the money for the plaintiffs"; still less, agents. The defendants claimed -what in their view was their own. That claim was necessarily in hostility to any other claim to the same demand. The rights of the parties run upon different lines. These lines do not converge, either in law or fact.

It may be added that it is by no means certain that the plaintiffs were entitled to these damages. The complaint avers that the recovery against the city was for the use and occupation of the pier for the purpose of a dump, and for the consequential loss of wharfage. Whatever may have been the form of that action, it necessarily proceeded upon the diminution of rental value by reason of the nuisance. The nuisance was upon the property when the present plaintiffs leased it, and they undoubtedly paid less rent in consequence- of its probable continuance. That being the case, the lessors were entitled to recover for such diminution in rental value. Kernochan v. N.Y. E. R. R. Co., 128 N.Y. 559; 41 St. Rep. 110. The action in which the damages.were.recovered was substantially the same as that referred to in the lease. It may have been different in form, but it sought redress for the wrong done by the dumping board. Whether such redress was obtained in one form of action or another is unimportant. However the real damages, namely, the diminution in rental value, may have been asserted and recovered, whether such diminution was called, “'damages for loss of wharfage,” or “ damages for loss of wharfage, rent," the practical result was the same. It follows that, if the claim was asserted and recovered because of the loss really sus-> tained by the lessors, they were acting rightfully in their own behalf. Whether acting rightfully or wrongfully, however, the plaintiffs have lost nothing to which they were legally entitled,, and their present action must fail.

The iudgment appealed from must be affirmed, with costs.

All concur.  