
    Edmund W. Converse et al., Resp’ts, v. Daniel E. Sickles, as Sheriff of, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 15, 1893.)
    
    Money paid, etc.—Judgment.
    Money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the judgment debtor.
    Appeal from a judgment dismissing the complaint.
    
      Garter, Hughes & Kellogg (Frederic JR. Kellogg, of counsel), for app’lts; Hays & Greenbaum {A. Blumenstiel, of counsel), for resp’t.
   Parker, J.

The defendant, as sheriff of the city and county of New York, about the 1st of May, 1890, took possession of the entire stock of goods then possessed by Feckheimer, Rau & Co., under executions issued against them. Such goods included certain merchandise, which the plaintiffs contend were procured from them by Feckheimer, Rau & Co., through fraud and deceit. Thereafter these plaintiffs elected to rescind the sales by reason of the alleged frauds, and commenced two replevin suits to recover them from the defendant, under which they obtained possession of the goods, and afterwards sold them. Subsequently, the actions coming on for trial, plaintiffs’ counsel stated, in his opening, that he would not be able to prove that plaintiffs had demanded possession of the goods from the sheriff before their commencement. The court held, following Goodwin v. Werthheimer, 99 N. Y., 149, that, in the absence of such proof, plaintiffs could not recover, and in each action directed the jury to find a verdict in favor of the defendant, for the return of the goods or their value. In pursuance of such direction, a judgment in each case was duly entered, execution thereon being stayed for a specified time. At the expiration of the period for which "a stay was granted, the plaintiffs, having reached the conclusion that an appeal could not be successfully prosecuted, paid to the sheriff' the amounts of the two judgments, aggregating $5,312.99, at the same time serving upon the sheriff a written protest, in which they alleged that payment was made under duress of execution and judgment, and demanded an immediate return of the sum so paid. Their demand being refused, this suit was commenced to compel restitution; the grounds assigned as a basis for the recovery being that, the goods having been obtained from them by fraud and deceit, they were entitled to their return from Feckheimer, Rau & Go., or the sheriff, and, inasmuch as the goods had been disposed of, the plaintiffs assert the right to-charge the sheriff, as trustee of the money in his hands, representing the goods.

The trial resulted, as we think correctly, in a dismissal of th& complaint upon the merits. The general rule is that money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the defendant. Insurance Co. v. Robinson,, 82 Pa. St., 357-359 ; Insurance Co. v. Heath, 95 id., 333-340 ; 6 Amer. & Eng. Enc. Law, 75, and cases cited. An exception to-the rule is where the money is paid in-satisfaction of an erroneous, judgment, which is subsequently reversed or set aside. In such case the money paid may be recovered back. Scholey v. Halsey, 72 N. Y., 578 ; Peyser v. Mayor, etc., 70 id., 497; Insurance Co. v. Heath, supra. And it is not necessary in order to maintain the-action, that the payment should have been coerced by execution; it is sufficient if paid after judgment. Lott v. Swezey, 29 Barb., 87; Scholey v. Halsey, supra; Peyser v. Mayor, etc., supra. The-cases cited by the appellants are not in conflict with the. rule asserted. Aside from those already referred to, they call attention to Bank of Commonwealth v. Mayor, etc., 43 N. Y., 188: Phelps v. Mayor, etc., 112 id., 216; 20 St. Rep., 238; and Vaughn v. Village of Port Chester, 32 N. E., 137; 23 St. Rep., 994. In Bank of the Commonwealth v. Mayor, etc., a municipal corporation collected a tax from the plaintiff, which was unlawfully assessed; and, the assessment being subsequently annulled, in proceedings taken for that purpose, it was held that the corporation was bound to refund the money which it had unlawfully collected. In Phelps v. Mayor, etc., the right to recover the money paid on a void assessment was denied, on the ground that the ordinance was on its face illegal and void, and payment without coercion of assessment was therefore a mistake of law, furnishing no basis for a recovery In Vaughn's case the assessment was invalid, and, the trustees of the municipality having passed a resolution for an advertisement and sale of all property upon which the assessment had not been collected, Vaughn offered to deposit sufficient money to abide the result of a test suit as to the validity of the assessment. His offer being denied, he paid the amount under protest. Subsequently, the assessment was adjudged illegal, and the court held that the payment was made under such coercion of law as would permit a recovery back of the moneys. In the case under consideration the judgment was legally rendered. Ho effort was made to reverse it on appeal, nor was it attacked by a motion to set it aside. The money paid was therefore in satisfaction of a valid judgment, and, under the rule established by the cases no which we have referred, there can be no recovery by the plaintiffs of the sum so paid.

The judgment should be affirmed, with costs.

All concur.  