
    Scheer-Ginsberg Realty & Construction Company, Respondent, v. Susan Devin, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Money had and received — payment of interest on mortgage — presumption and burden of proof.
    Where a mortgagee is entitled to twenty days’ notice of the payment of his mortgage, and to interest during that time, and the mortgage is paid within the time limit, payment of the. interest for the twenty days in the absence of fraud, mistake or duress is voluntary, though made under protest, and may not be recovered back.
    Appeal by defendant from a judgment in favor of plaintiff, entered in the Municipal Court of the city of Rew York, borough of Manhattan, fifth district, after a trial by a judge without a jury.
    Daniel Daly, for appellant.
    Louis A. Jaffer, for respondent.
   Bijur, J.

This action was brought by plaintiff to recover from defendant as for money had and'received a certain amount paid for interest on a mortgage held by defendant, from March 15, 1911, the date of payment, to March twenty-ninth.

So far as is pertinent, the testimony shows that defendant, who was entitled by the terms of an agreement to twenty days’ notice of payment of the mortgage and to •interest during the twenty days, told plaintiff that she would accept the money on any day when plaintiff might be in funds from the. negotiation of another mortgage obtained to cover the .amount represented by defendant’s mortgage. On the day of the closing of the new mortgage, defendant was represented by an 'attorney who insisted on receiving the entire interest for the twenty days before he would deliver the satisfaction piece, etc. He gave 'a receipt which recited that the plaintiff “ claims that on said interest there has been overpaid the sum of $136.08 * * * .the said plaintiff claiming that the said defendant agreed with said plaintiff that interest only be paid on said mortgage to date of payment. The said alleged excess sum of $136.08 is, therefore, paid pending settlement of said question with said defendant, she not being personally present.”

In' this situation, the most that can be claimed by plaintiff is that the money was paid substantially under protest. There was, however, no fraud, mistake or legal duress. It was, therefore, in the eye of the law a payment voluntarily made. '

The transaction in the case at bar is on. all fours with the one involved in Hess v. Cohen, 20 Misc. Rep. 333, except that in the latter case the mortgagee had agreed on payment of the mortgage to assign the same to some one in the mortgagor’s interest, and had then refused to execute the assignment without the payment of an unwarranted charge of twenty dollars. Such payment was held to have been made voluntarily, and, therefore, not to be recoverable. To the same effect is Matthews v. William Frank Brewing Co., 26 Misc. Rep. 46. The Hess-case distinguishes Britton v. Frink, 3 How. Pr. 102, as one where, in case of a payment of excessive costs exacted by an attorney, a recovery back was permitted because of his peculiar position as an officer of the court in respect of a matter covered by statute peculiarly within his knowledge. The same consideration affected the determination in Moulton v. Bennett, 18 Wend. 586.

Seabuby and Guy, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event. •  