
    Dennis Leary, Respondent, v. Frederick T. Hegeman et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Payment — Knowledge of the facts — Mistake by law.
    Money paid with full knowledge of the facts cannot be recovered, nor will relief be afforded in the case of a payment made under a mistake of law.
    Appeal by the defendants from a judgment rendered in favor .of the plaintiff in an action brought, in the Municipal Court, third district, borough of Manhattan, for the recovery of two several sums of money had and received by the defendants.
    Franklin Bien, for appellants.
    Purdy & Jacobson, for respondent.
   MacLean, J.

On March 30, 1897, the plaintiff, as appears by a memorandum offered by him at the trial, bought from the defendants certain lithographs of the value or price of $100, and paid $15, leaving as Balance ” $85 thereon; and also another, herein to be called the second lot, of the value of $60. The litographs of the first lot were printed and in stock, but he did not take them because, as he says, he was not then ready to ship them. Those of the second lot were not in stock, and he was told a few days after-wards that they would not be printed to be left on the hands of the defendants unless he made a further payment. Then, on April 8th, he paid $25, and those of the second lot were to be and were printed for delivery April 10th. On that day the plaintiff came ostensibly for the goods. At the same time came the United States marshal, who seized the second lot for alleged infringement of copyright, under a writ issued principally upon information furnished by the plaintiff himself, in an affidavit verified by him April 5th, or three days before the last payment, of $25.

The learned justice rendered judgment in favor of the plaintiff for the amount of the two several sums paid by him as for money had and received by defendants for or on behalf of the plaintiff. This was error, for the plaintiff could not recover back in this action and upon the evidence either sum. The sum first paid was a partial payment for a lot of merchandise, which he might have had, by payment of the balance, at any time, even on the day of the trial. The second he paid to procure the manufacture of another lot of goods which after the manufacture, so procured, and payment of the balance of the purchase money, he might have had, had he not brought about or assisted in bringing about another and forcible disposition of them. Both sums he paid with full knowledge of the facts. Indeed, only he had such knowledge. He cannot ask for relief because of any mistake of fact. He did claim upon the stand that he expected to get his goods back. If he told the truth, that merely shows he was mistaken as to the law, a mistake from which he cannot be relieved. .

The judgment should he reversed and a new trial ordered, with costs to the appellants to abide the event.

Freedman, P. J., concurs; Leaventritt, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  