
    Theodore Haebler et al., App’lts, v. Elijah Myers et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    Attachment—Reversal oe judgment setting aside—Restitution.
    Plaintiff’s attachment was set aside and the moneys in the sheriff’s handy paid to defendants as subsequent attaching creditors. On appeal the-order vacating the attachment was reversed. Held, that a direct action-, would lie by plaintiffs against defendants for money had and received.
    
      Appeal from a judgment of the general term of the supreme ■court in the first judicial department, affirming a judgment entered upon the decision of the court at special term, sustaining a demurrer to the complaint.
    This was an action for money had and received.
    In April, 1888, the sheriff of the city and county of New York received the sum of $900 “by reason of” the levy of an attachment which the plaintiffs had caused to be issued in an action brought by them against one Bernharth and others. On October -50, the defendants, “ as subsequent lienors,” procured an order restraining the sheriff from paying over to the plaintiffs the money so received by him, and on November 22 they procured -another 'order, granted at special term on notice, vacating said attachment. “After said attachment was so vacated, and in consequence thereof and not otherwise, said sheriff paid over to the -defendants, as subsequent lienors, said $900 which he had received under the attachment issued to him, as aforesaid, by the plaintiffs.” ■On the 18th of April, 1889, the order vacating the attachment was affirmed by the general term, but on October 31, 1889, the court of appeals reversed the orders made by the general and .special terms and denied the motion to vacate the attachment.
    November 12, 1888, the plaintiffs recovered judgment in the action brought by them against said Bernharth and others for the sum of $1,257.91, but the execution issued thereon to said sheriff was returned wholly unsatisfied and the judgment is still unpaid. The plaintiffs demanded restitution from the defendants, which was refused, and thereupon they brought this action, and alter alleging the foregoing facts in substance, asked that the defendants be ordered and decreed to make restitution to the plaintiffs, of the said sum of $900, with interest thereon from the 22nd day of November, 1888, besides costs of this action!
    The defendants demurred to the complaint upon the ground "that it did not state facts sufficient to constitute a cause of action. The special term, in sustaining the demurrer, held that the defendants had received nothing from the plaintiffs which they were bound to restore to them, as the money in question belonged to Bernharth and others until it was devoted to the payment of the ■defendants’ execution. The general term affirmed the judgment upon the same ground, but also suggested that it was the duty of the plaintiffs to obtain a stay of proceedings if they wished to protect their lien by a successful appeal.
    
      Marshall P. Stafford, for app’lts; Michael H. Cardozo, for resp'ts.
    
      
       Reversing 33 St. Rep., 990.
    
   Vann, J.

Restitution was a remedy well known to the common "law. Its object was to restore to an appellant the specific thing, •or its equivalent, of which he had been deprived by the enforcement of the judgment against him during the pendency of his -appeal. It was not created by statute, but was exercised by the ■appellate tribunal as incidental to its power to correct errors, and "hence the court not only reversed the erroneous judgment, but restored to the aggrieved party that which he had lost in conse"quence thereof. It was usually a part of the judgment of reversai which directed “ that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid.”

A writ of restitution was thereupon issued, provided the amount that the appellant had lost or paid under compulsion appeared of record, as by the return of an execution satisfied. Otherwise process in the nature of an ordér to show cause was first issued, known as a scire facias quare restitutionem habere non débet. Tomlin’s Law Diet., title Restitution; 2 Lill. Abr., 472; Rolle Abr., 778; Westerne v. Creswick, 4 Mod., 161; Wilkinson's case, Cro. Eliz., 465; Goodyere v. Ince. Cro. Jac., 246; Manning's case, 4 Coke, 94; 2 Tidds Pr., 1033; 1 Burrill Pr., 292.

In this state the practice is now regulated by statute, and .almost every conceivable case is provided for. Code Civ. Pro., :§§ 445, 1005, 1216, 1292, 1323, 2142, 2263 and 3058. Section 1323 seems especially adapted to -the facts set forth in the complaint, as it provides that “ when a final judgment or order is reversed or modified upon appeal,.the appellate court * * * may make or compel .restitution of property or of a right lost by means of the erroneous judgment or order.” This is a part •of § 330 of the Code of Procedure, under which it was held that the power conferred was cumulative, and did not take away the common law rights of a successful appellant. Lott v. Swezey, 29 Barb., 87, 88. There were earlier, though less complete statutes upon the subject. Laws 1832, chap. 128, § 1; 2 R. S., •509, §13; 1 R. L., 96, §§ 2 and 5.

The statutory remedy is exercised by the entry of a judgment or order in the action in which the erroneous judgment or order was rendered or made. We think that the remedies provided by statute are not exclusive, and that .they were enacted, in ■recognition of the right of restitution as it existed at common law, to furnish additional means of enforcing that right.

We have before us an effort to procure restitution by an independent action in the nature of indebitatus assumpsit, based upon the theory that the law will imply a promise from the conduct of -the defendants and the circumstances of the case. It has been repeatedly held that such an action will lie to recover back money paid on a judgment pending an appeal, which resulted in a reversal. The subject was carefully examined in Clark v. Pinney, 6 Cow., 298, where it was held that the court would not compel the party to resort to the antiquated remedy of scire facias, but would permit a recovery by a direct action as for money had and received. In delivering the opinion, Chief Justice Savage said: “The general proposition is that this action lies in all cases where the defendant has in his hands money which -ex wquo et bona belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment -of the money, is reversed, the legal conclusion is irresistible that the money belongs to the person from whom it was collected.”

This principle was recognized by the supreme court of the United States in Bank of United States v. Bank of Washington, 6 Peters, 8, where it was declared that “ on the reversal of a judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost,” and that he might proceed by action, scire facias, or order. The authorities uniformly support this position and out of many that might be cited the following are sufficient to illustrate the subject. Sturges v. Allis, 10 Wend., 355; Maghee v. Kellogg, 24 id., 32; Norton v. Coons, 3 Den., 130; Langley v. Warner, 1 Sand., 209; Lott v. Swezey, supra; Kidd v. Curry, 29 Hun, 215; Wrightv. Nostrand, 100 N. Y., 616; Travellers' Ins. Co. v. Heath, 95 Penn., 333.

The right of the plaintiffs to recover could be questioned if the money had absolutely belonged to them when it was. paid by the sheriff to the defendants, but inasmuch as they only had a lien upon it and had not then completed their title, it is claimed that no action will lie for their relief. In taking this, position the defendants lose sight of the fact that a lien is property in the broad sense of that word, and although it has no physical existence it exists by operation of law so effectively as to have-pecuniary value and to be capable of being bought and sold. They also ignore the proceedings that were in progress to convert the lien into a title to the fund. This makes the successful prosecution of the appeal a barren victory and enables the party in. fault to retain the fruits of his own wrong.

While the erroneous order was a protection to the sheriff who-acted upon it while it was in force, it is no protection to the defendants, because it was subsequently reversed on appeal, and became, as to them, the same as if it had never been made. When they accepted the money that was paid over in conseqrtenceof the order that they had procured, they knew that if the order should be reversed and their motion denied, they would no longer be entitled to it, and could not in fairness retain it. They also knew that if, in the meantime, the plaintiffs perfected judgment, and issued execution, their-right to the money, if not paid over, would be complete upon a reversal of the order. As they acted with knowledge of all the facts, it would be inequitable for them to retain money received under such circumstances, and we see-no reason why the law should not infer a promise of restitution the same as if the money had been collected under an execution.

In either case the inference rests upon the fact that money was-received by those who knew at the time that it might ultimately be decided that they were not entitled to it. But to whom did the implied promise run? Obviously to those who would have-been entitled to the money upon the reversal of the order, provided it had not been paid to the defendants. It was so held iu Caperton v. McCorkle, 5 Grat., 177, which is precisely in point.. The law implies the promise for the benefit of the injured party,, and if the situation were the same as it was when the money was paid, repayment to the sheriff would be required, because he would be entitled to possession of the fund under the restored attachment. Pach v. Gilbert, 124 N. Y. 612; 37 St. Rep., 218. But the situation is changed, as the plaintiffs have become entitled to the money by virtue of their judgment and execution. They,. .and they alone, therefore, can avail themselves of the implied promise, which is plastic in character and for the benefit of whom it may poncern. The law implies a promise because in equity and good conscience the defendants ought to have promised, and it will not permit them to say that they did not. It would be an anomaly to hold that the law will imply a promise in favor of one having 'title, but not in favor of one holding the first lien, when through the action of agencies known by the parties to be in operation and in the ordinary course of legal procedure the lien would have ripened into a title but for the erroneous order. The defendants procured the order and acted upon it and thereby obtained money that did not belong to them, and under such cir-cumstances the law presumes that they engaged to do what reason and justice require them to do. They are, therefore, under an obligation to restore the money. ■ In enforcing that obligation the courts will not be particular to require literal restitution to the sheriff, or late sheriff, but as the plaintiffs have now become entitled to the fund, will permit them to recover it in a direct action for money had and received. By imputation of law the defendants received the money for the benefit of the party ultimately ¡entitled to it, and by refusing to pay it over to that party, upon a proper demand after his rights had matured, became liable to an action for the recovery thereof. Mason v.Prendergast, 120 N. Y., 536; 31 St. Rep., 497.

The suggestion that the plaintiffs should have procured a stay of proceedings is not entitled to much weight, because a stay by order is not a matter of right, while a stay by undertaking upon appealing from a judgment is a matter of right, yet the omission to give an undertaking does not prevent a recovery upon a reversal of the judgment.

We think that the judgment rendered by the courts below should be reversed and the demurrer overruled, with costs in all •courts, with leave to the defendants to answer in twenty days upon payment of costs.

All concur.  