
    Charles F. Mattlage, Resp’t, v. David Lewi, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 4, 1893.)
    
    Monet paid—Mistake.
    In order to maintain an action for money paid under mistake, it must appear that the defendant has actually received money, or that which the parties have treated as money. That plaintiff has conferred a benefit upon the defendant by reason of such mistake is not sufficient.
    Appeal by the defendant from a judgment of the district court in the city of New York for the first judicial district, rendered upon a trial before the justice thereof without a jury.
    Action to recover moneys paid under mistake.
    The facts are stated in the opinion.
    
      Fred. 0. Leubuscher, for app’lt; H. Aplington, for resp’t. .
   Gtegerich, J.

The plaintiff, by mistake, paid to the New York Mercantile Exchange the annual dues on a ticket of membership thereof, standing in the name of one W. B. Pope, and held by the defendant as collateral security for a loan. The defendant first learned of the mistake when he offered payment for the dues on said ticket to the superintendent of the said exchange, who informed him that he (defendant) could not pay them a second time, .as they had already been paid by somebody else. Thereafter return of the amount paid by the plaintiff to the said exchange for such dues was demanded of the defendant, who refused to pay the same. This action was then brought. The defendant pleaded the general issue. Upon the foregoing state of facts the justice rendered judgment in favor of the plaintiff, and the defendant has brought this appeal. The judgment, in our opinion, cannot be sustained without a disregard of well settled rules. In order to maintain an action for money paid under mistake, it is not sufficient for a plaintiff t o prove that he has conferred a benefit upon the defendant by reason of such mistake. It must appear that the defendant has actually received money, or that which the parties have treated as money. It is not sufficient that the defendant received a credit in account to which he is not entitled. Keener on Quasi-Contracts, p. 139, and cases cited. See Brundage v. Village of Port Chester, 102 N. Y., 494; 2 St. Rep., 398. In the case at bar the money was not received by the defendant. The mistake was made by persons other than himself, and he did not in any manner contribute to the occurrence of the same.

Applying to this case the foregoing principles, it follows that the judgment should be reversed and judgment absolute for dismissal of the complaint should be directed in favor of the defendant, with costs.  