
    Max Gombossy, Respondent, v. Theo Katz, Appellant.
    (City Court of New York, General Term,
    October, 1896.)
    Mistake — Maker paying forged notes which he believed to be his own.
    The complaint in an action alleged that the plaintiff had delivered his notes to the defendant and had paid them, and that the defendant thereupon handed to the plaintiff promissory notes which the plaintiff supposed to be his own, but which were, in fact, forged both as to the signature of the plaintiff, and as to that of the indorser. The plaintiff then demanded a return of the money paid, and asked judgment for that sum. Held, that as the plaintiff would be liable to a bona fide purchaser upon the genuine notes, the plaintiff had a right to maintain an action to recover the moneys paid by him upon the forged notes as moneys paid by mistake.
    Appeal by defendant from interlocutory judgment overruling his demurrer to the complaint.
    Henry M. Goldfogle, for appellant.
    Herbert J. Hindes, for respondent.
   Van Wyck, Ch. J.

The ground of defendant’s demurrer was that facts sufficient to constitute a cause of action were not stated in the complaint, which alleged that plaintiff had executed and delivered four of his certain promissory notes in the aggregate, sum of $740, to defendant for value; that thereafter he paid the sum of $755.40, principal and interest of such notes, to defendant, who simultaneously handed to plaintiff four promissory notes purporting to be, and which plaintiff believed to be, his genuine four above-mentioned notes, but which were, in fact,, four notes to which his, plaintiff’s, signatures as maker and payee indorser, were forged; that he demanded a return of this $755. 40 from defendant, no part of which has been paid, and prays for judgment for said sum with interest thereon from the day upon which he so paid it to defendant. The plaintiff’s genuine notes originally delivered to defendant were negotiable instruments and a bona fide purchaser of them from defendant before maturity and for value could sue plaintiff and recover the .full face value thereof, notwithstanding that plaintiff had already paid defendant believing that he was fully paying. and receiving these original notes. The plaintiff’s action is to recover money paid under mistake. Money paid under mistake of fact may be recovered, however negligent the party may have been in making the mistake, unless the payment has caused a change in the position of the other party that would be unjust to require him to refund. Payments on forged paper are based upon the ground of being made by mistake, and the party may recover back the amount. Edwards Negotiable Instruments, §,276. This defendant is the alleged fraudulent utterer of. the forged paper, and is called upon to answer, denying this allegation of forgery, or fully explaining the legality of his alleged transactions. in the matter. The interlocutory judgment overruling defendant’s demurrer is affirmed, with costs, with leave to defendant to answer within six days upon payment of the costs as fixed by the judgment below and of the costs of this affirmance.

Fitzsimoxs and Scotchman, JJ., concur.

Judgment accordingly.  