
    Theodore Arend, Respondent, v. Octavius O. Cottle, Appellant.
    (Superior Court of Buffalo — General Term,
    July, 1895.)
    To entitle a party to rescind a contract and recover the amount paid thereon he must return what lie has received under it.
    After the lapse of ten years from the recovery of a judgment for costs against his brother, plaintiff paid to defendant, the attorney who recovered the judgment, .something- less than its amount on his agreeing to procure its discharge. Defendant immediately requested his client to execute a satisfaction, which he refused to do. Held, that plaintiff could not rescind and recover hack the money paid by him without returning the defendant’s agreement or releasing him therefrom.
    This is an appeal by tbe defendant from a judgment of the Municipal Court of Buffalo in favor of the plaintiff.
    
      Rowland (Jrangle, for respondent.
    
      Edmund P. Gottle, for appellant.
   White, J.

On November 22, 1884, one William Hyde recovered a judgment in this court against one Henry Arend, who is a brother of the plaintiff in this action.

Tbe judgment recovered by Hyde was for the dismissal of the complaint in that action, in which he vyas tbe defendant and said Henry Arend was tbe plaintiff, and for $108.88 costs. The defendant in this action, as the attorney of record for Hyde, bad issued an execution on that judgment, which was returned nulla bona prior to November 20, 1894.

On November 20, 1894, tbe plaintiff in this action paid to the defendant Cottle something less than the amount of that judgment in satisfaction of it, on the faith of Cottle’s agreement to procure the judgment to he discharged of record.

This arrangement was made by the plaintiff in the interest and for the benefit of his brother, Henry Arend, against whom Hyde had recovered and held the judgment for costs.

Two days after the defendant had requested his client Hyde to execute a satisfaction of the judgment, Hyde was seeking to induce Henry Arend to ¡Day the judgment to him.

On November 26,1894, the plaintiff undertook to rescind his contract with the defendant, and demanded the return of the money that he had paid to the defendant on the 'twentieth.

This action was begun December 8, 1894.

The presumption is that the judgment for costs recovered against Henry Arend by Hyde is in equity the property of the defendant, unless there was an agreement between the parties to the contrary. In re Bailey, 31 Hun, 608.

The plaintiff contends that the contract between him and the defendant was entirely independent of Henry Arend, and that there is no evidence that Henry had any interest in it. In that I think he is in error. To my mind it is plain from the evidence that the money was paid by Theodore solely for the benefit of Henry, and on the assumption that it was either a gift to Henry or that he would refund it to Theodore.

But the disposition to be made of this appeal must be the same in either case. The contract was executory, the money was paid unconditionally in satisfaction of the judgment upon the agreement of Cottle to procure it to be discharged within a reasonable time. The plaintiff well says that whether or not Cottle failed to procure the discharge within a reasonable time is a question of law for the court.

Let us assume then that the plaintiff can rescind and recover back the money paid to the defendant in case he fails to perform his contract, namely, to procure the judgment to be satisfied of record within a reasonable time, although it may be that for such a breach the defendant would be liable only for damages, which would be measured by the expense of a motion for that purpose.

In this case the plaintiff knew when he paid the money that Cottle could not himself discharge the judgment, by reason of the time which had passed since it was recovered.

Immediately upon the receipt of the money Cottle requested his client to execute the proper paper, which the client refused to do. The only thing Cottle could then have done was to proceed by a motion to compel a discharge of the judgment,

and there is no evidence that he neglected to proceed in that way for an unreasonable length of time.

Furthermore, Theodore Arend could rescind, if at all, only by returning to and releasing Cottle from his agreement -to procure a discharge of the judgment. Instead of doing that he kept and used the agreement as a practical discharge of the judgment, and thereby enabled Henry to openly take title to real estate by recording a deed of lands which he had owned for several months.

There was no legal rescission. Andrews v. White, 28 Abb. N. C. 150.

A more troublesome proposition from my point of view is the claim of the plaintiff, that by special agreement between Hyde and Cottle the latter had accepted fifteen dollars in full payment for his services in the suit against Henry Arend, and that, therefore, Hyde, and not Cottle, was the owner of the judgment.

There was evidence given on both sides of this question in the court below, and its judgment may have been given upop the theory that the plaintiff’s claim upon that point is well founded and that Cottle took the money from the plaintiff wrongfully. Even if that be the' case, however, and though actual fraud were charged as the basis of this action, instead of simple contract, it would be necessary still for the plaintiff to return to Cottle his contract, or release him from it, in order to rescind and put himself in a position to rescind and recover back the money paid.

I think there should be a new trial on the merits.

/

Hatch, J., concurs.

Judgment reversed and new trial ordered.  