
    Ambrose J. Agate, App’lt, v. Caroline House, as Executrix, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    
      1. Payment—Compromise.
    A payment, made in compromise of a claim, cannot be recovered back, though it afterward appears to have been without consideration.
    
      2. Appeal—Reversal.
    A judgment will not be reversed for slight errors in rulings or inconsistencies in findings, where it is clearly right and the case has been several times before the court.
    Appeal from a judgment in favor of defendant.
    
      George W. Blunt, for app’lt; Henry W. Taft, for resp’t.
   Per Curiam.

There have been numerous trials and three appeals herein, and it is not our purpose to consider anew the questions that have been settled. See Agate v. Agate, 11 St. Rep. 579. On the last appeal to this court, it affirmed the order denying the motion for a new trial, and affirmed the interlocutory judgment, except that part of it which declared that the indebtedness of William Agate to his father’s estate had been paid, which part they reversed, and ordered that a new trial be granted, to determine if William Agate’s indebtedness to his father or his father’s estate had been paid, and, if not, what amount is due said, estate, and that the issue as to the payment of the indebtedness be referred back to the referee. The referee reported that the indebtedness had not been paid, - and that the defendant was entitled to receive payment thereof; and after determining such indebtedness, and interest thereon, and charging defendant with the rents received, and interest thereon, he deducted the latter from the indebtedness of the plaintiff, which left a balance in favor of the defendant of the difference, which amounted to $11,083.21. The appellant excepts to the method of computation, arid states in his brief that “ if Ann Agate was entitled to interest on $7,143.97 to November 4, 1891, this plaintiff is also entitled to interest ” on defendant’s indebtedness to the same date. In his statement of what the referee did counsel has fallen into an error, because the referee c'omputes the interest on the sums due by both plaintiff and defendant down to November 5, 1885, and after deducting one sum from the other he allows interest upon the balance from 1885 down to the date of his report, which is a correct method of computation. In effect, what the referee did was to determine what were the sums due by each of the parties, respectively, to the other, as of the date of November 5, 1885, and then, upon ascertaining the difference, to allow interest upon such difference down to the date of bis report. At the beginning of the reference the plaintiff objected to procéeding, upon the ground that the debtor’s claim, which was the subject-matter of the reference, was barred by the statute of limitations, and this is urged again upon this appeal. This objection is disposed of, not only by the reasoning of the referee, but also by the terms of the order directing the reference.

Another question that was argued upon the former appeal, and is again urged, is that the indebtedness of William Agate to his father’s estate had been fully paid and satisfied by allowing to him, with the consent of the legatees and heirs, his share in his father’s estate, which it is claimed Ann Agate was to hold for him. It is insisted, however, that, in the light of the new evideuce presented upon this question before the referee, he should have sustained appellant’s contention. The referee, as shown in his opinion, did consider the new evidence offered, and presenting, as it did, a question of fact, he has found against the appellant, and with hiá conclusion we see no just reason to interfere.

The serious question presented relates to the effect that should be given to the release executed by Ann Agate to .Joseph Agate, executor of the father’s estate. It appears that in 1887 an action was commenced by George Y. House, as assignee of Ann E. Agate, to recover for rents of the premises here in dispute, which Joseph Agate had collected, and sent to William, in California. Judgment was rendered against Joseph Agate for upwards of $18,000, which, upon appeal, was reversed, and a new trial granted. Before such new trial, however, Joseph Agate paid $7,500, and obtained from Ann Agate, Carolina E. House, and George Y. House a general release of all claims against him; and this, it is claimed, should inure to the benefit of William, and be resorted to as a shield to protect him from the payment of his indebtedness to his father’s estate. There is no evidence that any portion of this $7,500 was paid out of the rents received by Joseph, nor was any portion of it contributed by William. It is true, as now determined, that Joseph was justified' in paying over the rents that he from time to time received to William, and could not have been obliged to account for them to Ann Agate. And this presents an instance of one making a claim against another, which they settle and adjust between them. Then, because it subsequently appears that such claim never had a valid existence, a third party attempts to interpose a release thus obtained as a barrier to protect himself against the lawful claim of the person to whom the money was paid for such release. We think the respondent is correct in saying that, even if the $7,500 was paid solely in settlement of the suit of George Y. House against Joseph Agate for the collection of the rents, nevertheless it does not appear that William Agate ever had to contribute any portion to secure the release. As it is now decided that William was entitled to the rents that Joseph had turned over to him. the latter could not compel a contribution by William of any portion of the amount thus paid. If Joseph, to release himself from the claim made against him, personally paid a certain amount of money by way of compromise, he cannot, after it \has been decided in another action, to which he is not a party, that the claim against him was without foundation, recover the amount thus paid, either from the persons to whom he paid it, or from the person on whose account the claim is made against him. There are other considerations urged, which enforce the view that the release was never intended for William’s benefit; that' he was never a party thereto; and, never having been obliged in any way to con.tribute, it is not available to him.

Many exceptions were taken to the rulings of the referee upon evidence, and to his findings and refusals to find, all of which, upon examination, present no legal barrier to the affirmance of the judgment. So far as this court is concerned, it has had this case before it in every possible shape; and after all the trials and proceedings, when at last it appears that the judgment is right, the court should not be astute to find errors in rulings, or slight inconsistencies in findings, upon which to hang a reversal. _

_ We think that the judgment should be affirmed, with costs.  