
    Thomas Eckert, App’lt, v. Michael Lennert, Resp’t.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 21, 1892.)
    
    Parties—Money paid by mistake.
    Plaintiff and one B. jointly engaged to purchase of defendant certain premises. By the contract a mortgage was assumed, upon which was some accrued interest. When the contract was consummated plaintiff, who furnished the money, by mistake paid the interest item to defendant, who refused to return the same, and plaintiff was obliged to pay the mortgagee the amou.it. After the purchase B. transferred all his interest to plaintiff, who thereafter brought action to recover the money overpaid from defendant, and was nonsuited upon the ground that there was a defect of parties Held, error; that plaintiff alone was entitled to the money to be recovered, and, therefore, the only party in interest.
    Appeal from a judgment, entered in the municipal court of Buffalo, dismissing plaintiff’s complaint.
    
      W. G. Kilhoffer, for app’lt; M. A. Gerons, for resp’t
   Hatch, J.

Plaintiff and one Enders jointly engaged to purchase of defendant certain premises; by contract a mortgage was assumed, upon which, at the time, was some accrued interest. When the parties met to consummate the contract and pay the purchase money, plaintiff, who furnished the money, by mistake, paid the interest item to defendant, who has ever since kept it, and thereafter plaintiff' was obliged to pay the mortgagee the amount of said item. After the purchase was made, Enders transferred all his right and interest in the property to plaintiff. Thereafter plaintiff demanded the money overpaid from defendant, and upon refusal brought this action, and was nonsuited below, upon the ground that there was a defect of parties.

I am unable to see how this result can be legally reached. If we assume that the money produced by plaintiff was partnership money, yet it was only so to the amount agreed upon as the purchase price, so that when he made a mistake and overpaid, it was his money and his mistake, and he alone had an interest in its recovery back, and when recovered it belonged entirely to him. The matter was independent of the real estate transaction ; that embraced the land and its purchase price was a joint charge upon the plaintiff and Enders, but it was limited to that, and when plaintiff made his mistake and paid more money than he should, he was the only one that suffered, and the law should right him. It is immaterial to the question whether Enders was liable for a proportion of the money so paid to plaintiff, as that matter would necessarily turn upon other questions than the purchase of the land, like whether he was responsible for the mistake, and so forth; but that question would be entirely independent of the joint venture, except as the circumstance furnished the occasion for the mistake. Since the mistake wras made Enders has parted with all interest in the land to plaintiff, and now plaintiff seeks to make defendant repay him his money, and is driven out of court because he has not associated with him a person who has not the slightest interest in the money. The Code, § 449, commands that every action shall be brought in the name of the real party in interest. As the plaintiff is entitled, and he alone, to the money to be recovered, and as it was his money when paid, he would seem to fall within the designation of a party in interest.

The action was, therefore, properly brought and the judgment dismissing the complaint should be reversed, with costs.

Titus, Ch. J., and White, J., concur.  