
    DUNCAN against BERLIN.
    
      Court of Appeals,
    
    
      September, 1871.
    Mistake.—Pasties.
    Upon an attachment being levied on a debt due from the present plaintiffs to the debtors in the attachment, the plaintiffs paid to tbe sheriff a sum which they supposed to be the balance due to them from the debtors. They afterward discovered a mistake in their accounts, showing that the true balance was less than they supposed, and had paid.—Held, that they could maintain an action to recover back the excess from the attaching creditors, to whom, in the meantime, the amount, less fees, had been paid by the sheriff.
    Negligence in paying money under a mistake does not prevent the party paying from recovering back the money, if the payee has not been prejudiced.
    Appeal from a judgment.
    This action was brought by Duncan, Sherman & Co., to recover one thousand dollars, paid under a mistake to the deputy sheriff, in an attachment "suit in which the present defendants, Jacob Berlin and others, were plaintiffs.
    In January, 1866, a suit was commenced in the supreme court by Berlin and others against Hamilton Blagge & Co., to recover about sixteen hundred dollars. An attachment was issued to the sheriff, who called upon the plaintiffs, served the attachment, and was informed by them that, including property unsold, they had in their hands about nineteen hundred dollars, due to Blagge & Co. Judgment was entered against Blagge & Co., on March 17,1866, and, two days after, execution was issued, of which the plaintiffs were informed, who then and thereafter informed the sheriff and defendant’s attorneys that they had in their hands sufficient- funds to pay the execution. In May and June, 1866, the plaintiffs paid the sheriff nineteen hundred and twenty-four dollars and thirty-three cents, for which they took the following receipt:
    ‘ ‘ Supreme Court. Jacob Berlin v. Hamilton Blagge, el al. Received, New York, June 2, 1866, from Messrs. Duncan, Sherman & Co., nineteen hundred and twenty-four dollars and thirty-three cents, in full for proceeds of sale, the said money being attached January 16,1866, in the hands of Duncan, Sherman & Co., and paid over by them under protest.
    “ Received payment,
    “Thomas Feaeihg, Deputy Sheriff, “Per David Meelio, Deputy Sheriff.”
    On June 7, the sheriff returned the execution satisfied, and paid the money to defendants, less one hundred and ninety-four dollars and fourteen cents, his fees.
    The plaintiffs subsequently discovered an error in their account with Blagge & Co., which had made the balance nineteen hundred dollars, instead of nine hundred dollars, as in fact it should have been; and thereupon brought this action.
    The court dismissed the complaint, on the ground that the action could not be maintained, and that the sheriff and Blagge & Co. should have been made parties (5 Robt., 457).
    
      On appeal, the judgment was affirmed by the court at general term (4 Abb. Pr., N. S., 34 ; S. C., 5 Robt., 457).
    The plaintiffs appealed to the court, of appeals.
    
      W. D. White, for plaintiffs, appellants.
    
      F. C. Cantine, for defendants, respondents.
   Rapallo, J.

It was not made to appear that the defendants would, in refunding the money, be in any worse position than if it had never been paid.

The plaintiffs supposed they had funds of Blagge & Co., which in fact they had not, and the money was paid and received as funds of Blagge & Co.

Negligence in making the mistake does not prevent the party paying from recovering back the money, if the other party has not been prejudiced.

The defect of parties is not such as could be taken advantage of in the absence of any objection by demurrer or answer. The fees of the sheriff, in so far as • they were increased by the payment of the thousand dollars, should be allowed to the defendants.

The judgment should be reversed and a new trial ordered, with costs to abide the event.  