
    Silas A. Underhill, Appellant, v. Ella F. Rodwell, Respondent.
    
      A legacy overpaid by mistake — the surrogate’s decree on the executor’s accounting is not conclusive as to the right to recover the overpayment.
    
    A decree of a Surrogate’s Court, entered upon an executor’s accounting, is not conclusive in favor of the executor’s right to have money, paid by him in excess of the amount due upon a legacy, repaid by the legatee.
    Appeal by the plaintiff, Silas A. Underhill, from a judgment of the City Court of Brooklyn in favor of the defendant, entered in the office of the clerk of said court on the 25th day of January, 1895, the jury before whom the case was tried having found- a verdict for the plaintiff of ten dollars. - '
    
      ‘Reuben II. Underhill, for the appellant.
    
      Henry Mamie, for the respondent.
   Pee Cubiam :

The complaint contains two causes of action. The first avers that, through inadvertence, the plaintiff overpaid to the-defendant' a sum of -money amounting to more than the- sum to- which the defendant was entitled for her share or legacy in the estate of Thomas G. Rod-well, deceased,.of which estate- the plaintiff was the executor, as settled upon the accounting by said executor and entered in the final decree by the surrogate of Kings- county. The second - cause. -of action is for the balance of a bill due from the defendant for professional-services. A trial was.had, resulting- in a verdict in favor of the plaintiff for the sum due as professional services, and allowing nothing for the claim made on account of the overpayment. The plaintiff now insists that the decree of the surrogate: is a binding, final decree, and, as such, is conclusive upon the defendant and entitles, the plaintiff to recover the sut-n established thereby as his costs and allowances.

It may be assumed that, if plaintiff had not made the payment, the decree would be conclusive as to -the amount which was' therein adjudged to the plaintiff as and for his costs and allowances. But such assumption does not meet the- present question. The money for which this action is brought was, in fact, paid, by the plaintiff. The decree did -not determine that such money should be repaid to the plaintiff by the defendant,, in consequence of- - which ' proof of the decree alone-did not establish that the defendant was indebted to the. plaintiff in any sum. Before the plaintiff could recover he was required to establish, not alone the decree, but that the payment was made .under such circumstances as -entitled him to- . recover it. Voluntary payment might have been made by the plaintiff, with full knowledge of the facts, and, if so, no action would lie to recover it. (Bazen v. Roget, 3 Johns. Cas. 87; Wind bel v. Carroll, 16 Hun, 101; Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420.)

Nothing in the decree throws' any light upon this question. It was the claim of the defendant that, by agreement of the parties, the payment as made was to stand and each was to receive nothing as against the. other. This claim was not in conflict with anything contained in the decree, and, as the jury found in favor of the defendant upon that claim, it becomes conclusive upon the plaintiff. The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  