
    (89 Hun, 548.)
    OTIS v. CROUCH et al.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Judgment—Res Judicata.
    On an accounting in the county court by an assignee for the benefit of creditors, it was determined by the decree that the estate was not sufficient to pay the preferred creditors in full, and that the assignee had overpaid one of them, but repayment of sucn amount was not ordered. 
      Keld, that such decree was not a bar to a subsequent action by the assignee to recover the amount of such overpayment, as his remedy by action was consistent with the matters determined by the decree.
    2. Jurisdiction of County Court — Action for Money Had and Received.
    An action by an assignee for the benefit of creditors against a creditor whom he had overpaid, to recover the amount of such overpayment, is for money had and received, and is within the jurisdiction of the county court.
    Appeal from Monroe county court.
    Action by Lyman M. Otis against George M. Crouch and Frank P. Crouch. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendants appeal. Affirmed.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    H. G. Pierce, for appellants.
    F. E. Drake, for respondent.
   BRADLEY, J.

The plaintiff was assignee for the benefit of the creditors of Van Roe & Spitz, as a firm and individually. The firm of Chase & Otis, of which the plaintiff was a member, and the defendants’ firm, were preferred creditors,—the former to the amount of $2,102, and the latter firm in the sum of $3,189.09,—and they were entitled to participate in the assigned estate applicable to them, as preferred creditors, in that ratio. It turned out that the estate was not sufficient to pay them in full, and that the advances made by the assignee to the defendants exceeded by $278.77 the amount to which they were entitled. This was determined by the decree of the county court in an accounting duly had of the assignee, upon notice to all parties interested in it; and, by the decree of the court made on that accounting, the assignee was directed to pay that sum to Chase & Otis, or the survivor of them. Chase had died. The plaintiff was the survivor. He alleges that he thereupon so paid that sum, and demanded restitution of the defendants, which was refused. By this action he seeks to recover the amount so overpaid to them. And he gave evidence to the effect that he, as assignee, made advances to the defendants, that the last advance he made to them was of $1,000, and that when he was called upon by one of the defendants, and requested to do so, he did it, with the express understanding then had between them that, if it overpaid the amount to which they were-entitled, it should be adjusted on final settlement. There was a conflict in the evidence of the parties as to such agreement. But that question of fact was submitted to the jury, and determined adversely to the defendants. The main grounds of the defense urged by the defendants are (1) that the decree in the proceeding for settlement of the accounts of the assignee is a bar; to recovery; (2) that the relief sought by the action is available only in equity, and therefore the county court is without jurisdiction to grant it.

The first objection is founded upon the fact that, in proceedings relating to assigned estates for the benefit of creditors, the county court has general jurisdiction, and can exercise the powers of a court of equity in dealing with the subject of the trust. Laws 1877, c. 466, § 25. And it is urged that the-forum was there, in that proceeding, for the plaintiff to obtain directions for restitution, if he was entitled to it, from the defendants. No such provision was made in the decree, although it was within the power of the county court, by it, to direct the repayment of the sum before mentioned, by the defendants to the plaintiff, if the question was there presented for determination. In re Morgan, 99 N. Y. 145, 1 N. E. 406. In relation to the sum in question, the decree determined that the defendants had received from the assignee such amount in excess of that to which they were entitled; that the assignee was charged with that sum, as if it still remained in his hands; and he was directed to pay it to the survivor of Chase & Otis. Thus far the rights of the parties were determined by the decree of the county court. The question is whether, beyond that, as relates to the right of the plaintiff to enforce restitution to him, the decree is res adjudicata, within the general rule that a judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, but as to all matters which the parties might there have litigated and had determined. The application of that proposition has relation to the case or issues presented for trial or determination. Stowell v. Chamberlain, 60 N. Y. 272; Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55; Hymes v. Estey, 116 N. Y. 501, 22 N. E. 1087. Although the decree contained no direction in that respect, the facts represented by it were substantially to the effect that the defendants were not, and that the plaintiff was, entitled to the money. Lupton v. Lupton, 2 Johns. Ch. 614; Walker v. Hill, 17 Mass. 380; In re Morgan, 99 N. Y. 147, 1 N. E. 406. The decree is therefore consistent with the claim made by the plaintiff in this action, and no reason is seen, in the omission in the decree of direction to do so, to relieve the defendants from liability to make restitution to the plaintiff. In the proceeding instituted by him for an accounting as assignee, the plaintiff was not required to include his claim against the defendants for determination, nor does it appear that he did so by the petition upon which the proceeding was founded. Although he might have done it, and did not, he had the right of action for such relief on refusal of the defendants to pay the money. This was held in the Morgan Case. As his election of remedy by action is consistent with the matters determined by the decree of the county court, the adjudication there had is no bar to the action.

Nor is there any want of jurisdiction of the county court for the purposes of the remedy. The action, in its nature, is for money had and received, and it may be equitable in its purpose and effect. The question in such case to be determined is to which party, according to equity and conscience, the money in question belongs. And while such an action may, in some sense, be deemed a substitute for an equitable one, it is nevertheless a common-law action. Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 Wend. 488; Buell v. Boughton, 2 Denio, 91; Cope v. Wheeler, 41 N. Y. 303; Hathaway v. Town of Cincinnatus, 62 N. Y. 434, 447. The action is not here treated as one to modify the decree of the county court, or for relief contrary to it. It could not be maintained if the relief sought were inconsistent with any determination duly made by that decree. But as the recovery by the plaintiff of the defendants of the money, by way of restitution, is collateral to the main purpose of the accounting proceeding, it was not, so far as appears, necessarily, in legal contemplation, within the operation of the decree, since the jurisdiction of the county court in respect to the matter of controversy in the action was not exclusive. In the Morgan Case the matter in question was taken into the county court for the specific purpose of having a determination upon it, and direction accordingly. 34 Hun, 217. The views here taken lead to the conclusion that the judgment and order should he affirmed. All concur.  