
    The Mayor, Aldermen and Commonalty of the City of New York, Appellants, v. Henry Erben and The New York Life Insurance and Trust Company, Respondents.
    City or New York. Awards ror improvements in streets. Commissioners. Jurisdiction. Misinformation. The commissioners appointed to estimate and assess damages and awards, in tho matter of widening and improving streets in the city of New York, have sole jurisdiction in making the estimates of the value of property taken for such improvements, subject to appeal to the Special Term of the Supreme Court, and no other judge, jury, court or referee has the slightest authority to examine into the matter.
    Hence, where an award had been made to a party, which, he was informed by a clerk in the commissioners’ office, was a given amount, upon which statement he relied, but which was erroneous, and which erroneous amount was afterward paid to him through some misapprehension, held, in action to recover the sum thus overpaid, that neither the fact of misinformation, nor the further fact, if proved, that the amount received was no more than a fair compensation, could outweigh the fact of the award as actually made by the commissioners, and that the city was entitled to recover.
    It was the duty of the party to examine the report for himself, and not to rely upon the statement of a clerk or subordinate, as to its contents.
    This is an appeal by tbe appellant from a judgment of tbe General Term of the Superior Court of the city of Mew York, affirming a judgment, rendered upon a report of a referee in favor of the defendants. The action was brought to recover back the sum of $9,000, alleged to have been overpaid to the defendants upon an award made to tbe defendant Erben for land taken in tbe extension of Canal street.
    The referee found the following facts and reached the conclusions of law following:
    1. That in the year 1852, and until tbe month of May, in tbe year 1855, tbe defendant Erben was the owner in fee of three lots of land situate in Centre street, in the city of Mew York, and known by tbe street numbers one hundred and "fifty-eight (158), one hundred and sixty-four (164) and one hundred and sixty-six (166) Centre street, subject, however, to a certain, mortgage executed by the said defendant, Erben, to the defendant, the Hew York Life Insurance and Trust company, to secure the payment of the sum of four thousand five hundred dollars, with the interest thereon.
    2. That the - said lots of land, during all the time aforesaid, were each worth at least the sum of twelve thousand five hundred dollars.
    3. That some time before the month of May, 1856, the plaintiff procured, in the Supreme Court, the appointment of commissioners of estimate and assessment, to assess the benefit and award the damages to the owners of property within' the line of the improvement in the matter of the extending of Canal street, and the widening of Walker street, in the city of Hew York.
    4. That the whole of the said lot, one hundred and sixty-four (164), and certain parts of the lots numbers one hundred and fifty-eight (158) and one hundred and sixty-six (166) Centre street were required for and were taken for, the extension of Canal street.
    5. That such lots and parts of lots so required and taken for such extension were worth, at that time, the sum of twenty-five thousand dollars.
    6. That the defendant, Erben, attended before the said commissioners of estimate and assessment, from time to time, upon their request, and was informed by the said commissioners that the amount awarded to him for the said lots was about the sum of twenty thousand dollars over and above the amount assessed against him for the benefit to the other property owned by him within the line of said improvement.
    7. That the said commissioners afterward made, and filed with the street commissioner of the city of Hew York, their report, in and by which they did, among other things, award to the defendant, Erben, for the said parts of lots numbers one hundred and sixty-four (164) and one hundred and sixty-six (166) Centre street, the sum of nine thousand and fifty dollars, out of which a sufficient sum was to be paid to the defendant, the Hew York Life Insurance and Trust company, to satisfy a mortgage thereon, for the sum of four thousand five hundred dollars, with the interest due thereon, and did also award to the defendant, Erben, for the said lot number one hundred and fifty-eight (158) Centre street, the sum of six thousand seven hundred and fifty-five dollars, out of which a sufficient sum was to be paid to the defendant, the Hew York Life Insurance and Trust company, to satisfy a mortgage thereon for the sum of four thousand five hundred dollars, with interest due thereon.
    8. That, at the time of the making of the said report, or at any time previous thereto, there was but one mortgage, which was a lien upon the said lots or parts of lots, which mortgage was executed by the defendant, Erben, to the defendant, the Hew York Life Insurance and Trust company, to secure the payment of the sum of four thousand five hundred dollars, with the interest thereon, and upon which mortgage, at the time of the payment of the sum of money hereinafter mentioned, there was due, for principal and interest, the sum of four thousand one hundred and twenty-four dollars and forty-three cents, and no more.
    9. That, after the said report of the said commissioners was so filed, the defendant, Erben, called at the office of the street commissioner of the city of Hew York, and requested of the clerk of said street commissioner permission to examine the said report; that the said report was not shown or examined by the defendant, Erben, but in lieu thereof he was informed by such clerk, and believed, that the amount awarded to him for damage was about the sum of twenty thousand dollars, over and above the amount assessed against him for benefit to other property owned by him within the line of said improvements; which assessment amounted to the sum of four thousand dollars, or thereabouts, upon which information the said defendant relied, and he had no other knowledge or information upon the matter aforesaid.
    10. That afterward, and on or about the 10th day of May, 1855,. upon the defendant, Erben, demanding the same as due under said report, the plaintiff made and delivered to the defendant' The Hew York Life Insurance and Trust company two warrants duly drawn by them upon the Mechanics’ bank in the city of Hew York, both dated on that day, and both payable to the order of the defendant, Erben, and the order of the defendant The Hew York Life Insurance and Trust company, one of which warrants was numbered 1179, and was for the sum of thirteen thousand five hundred and fifty dollars, and the other of which warrants was numbered 1180, and was for the sum of eleven thousand two hundred. and fifty-five dollars, both of which warrants were duly indorsed by the defendants, and were • afterward paid by the said Mechanics’ bank, in the city of Hew York, to the defendant, The Hew York Life Insurance and Trust company, and for which warrants a receipt was signed by the defendants.-
    11. That the defendant, The Hew York Life Insurance and Trust company, had no notice or knowledge of the amount awarded to the defendant, Erben, other than that contained in thp said warrants and receipts, and that the defendant, The Hew York Life Insurance and Trust company, received the said warrants, and the money paid thereon, for the purpose of making distribution of such money as between the defendant, The Hew York Life Insurance and Trust company, and the defendant Erben, and not otherwise ; and that the defendant, The Hew York Life Insurance and Trust company, did, after the receipts of the said sums of money mentioned in the said two warrants, make distribution thereof by retaining the said sum of four thousand one hundred and twenty-four dollars and forty-three cents, and by paying over to the defendant Erben the sum of twenty thousand six hundred and eighty dollars and fifty-seven cents.
    12. That the plaintiff voluntarily made and delivered the said warrants to the defendants, with full knowledge of the several matters stated in the report of the said commissioners.
    As conclusions of law the- referee found, — first, that the plaintiff, having voluntarily paid the sum of money above mentioned, cannot maintain this action for the recovery of any part thereof.
    
      Second, that each of the defendants are entitled to judgment against the plaintiff, with the costs of this action.
    
      Richard O' Gorman, for the appellants.
    
      Samuel Hand, for the respondents.
   Hunt, Ch. J.

After setting forth the general facts of the case in their complaint, the plaintiffs close by alleging, that, at the defendants’ request, they paid the defendants for such damages the sum of §24,805. They further allege that the said payment was made under a mistake of fact on the part of the plaintiffs, and under the supposition that the sum above mentioned was the sum of the payments to which the defendants were entitled, under and by virtue of the report of the commissioners of estimate and assessment. In his answer, the defendant, Erben, among other things, says, that he received the sums mentioned under the full belief that the same was the amount awarded to him by the said report over and above any incumbrance upon the premises, and he insists that the same was such amount. He further insists, that the same was so paid and received as waiver by all parties of all objections to the said report, and with full knowledge that such- sums were rightfully payable, if erroneously ■ stated in several parts of said report, and with intent to consummate the duty and purpose of said commissioners, whether correctly expressed in said report or by mistake erroneously stated therein.

The commissioners awarded to the defendant, Erben, the sum of §15,755. He received from the comptroller of the city warrants to the amount of §24,805, upon which the money v^as paid to him. The referee finds, that Erben believed that amount was due to him when it was thus received. The plaintiffs, in their complaint, allege that the excessive payment was an error on their part, and there is nothing in the evidence to indicate that such is not the fact. There is not the least evidence to show that the comptroller intended to pay Mr.. Erben a dollar more than he was legally entitled to. To have done so would have been a violation of'his duty. There is no evidence that the plaintiff, as a corporation, ever recognized such action. The defendant testifies, and the referee finds, that he believed that amount to be due to him by the report,, as it was paid to him. It is thus, apparent that the excess over $15,755 was paid to the defendant in mistake of the facts.

I cannot understand how the referee could have reached the conclusion, that the plaintiff voluntarily delivered the warrants to the defendants in the full knowledge of the several matters stated in the report of the commissioners. I am not able to reconcile it with the previous finding that the money was paid upon an erroneous understanding of the amount actually awarded to Hr. Erben, nor do I see any warrant for it in the evidence. Ho witnesses on either side gives any testimony from which such a conclusion can be drawn.

The plaintiff and the defendant mutually supposed that the report of the commissioners which had been confirmed by the Supreme Court and filed, awarded to the plaintiff the sum of $24,000, and that sum was thereupon paid to him. For the money thus received in excess of the amount actually awarded, the defendant would no doubt be prima facie liable to respond to the plaintiff. The general rule is clear, that money paid in a mistake of facts as to what both parties were bound to require, may be recovered back. (Bank of Commerce v. Union Bank, 3 Comst. 230; Canal Bank v. Albany, 1 Hill, 287; Whedon v. Olds, 20 Wend. 174.)

In answer to this demand, the defendant insists that this is in substance an action for money had and received to the use of the plaintiffs, in which action it is said, the most liberal rules prevail, and in which the defendant may interpose every equitable defense, and may shield himself by anything which shows that, ex equo et bono, the plaintiff is not entitled to recover. This is true. The defendant further insists that the evidence introduced by him shows, that upon these principles the plaintiffs cannot here succeed. He has proved, as he says, by indisputable evidence, that the property appropriated under the proceedings to extend Canal street was worth the full sum he has received for it, and that, upon application at the commissioners’ office, he was informed by them and afterward by their clerk, that about tiie sum received by him had been actually awarded to him. It is quite probable that the defendant was not awarded as much as he should have been, for his lots on Center street, and it is equally probable that he failed to have that error corrected, on account of the erroneous -information given to him by the clerk at the office of the commissioners. This is unfortunate, but it cannot aid the defendant here. The whole proceeding of the commissioners is judicial in its character, is subject to review and correction in the Supreme Court, and is finally made a part of the records of that court. To overhaul judgments thus established, upon the ground that a clerk or an officer in the commissioners’ office, upon whose statement of their contents a party had relied, instead of making a personal examination of the record, had incorrectly stated their contents, could not be tolerated. Nor will it aid the case to allege that in fact the defendant was not awarded as much for his lots as he ought to have been. Neither the referee nor the Superior Court nor this court has jurisdiction in this action to examine that question. It is intrusted by law to the commissioners solely, subject to an appeal to the special term of the Supreme Court, and no other judge, jury, court or referee has the slighest authority to examine into the matter.

The plaintiffs were entitled to a recovery against Mr. Erben, and a new trial must be ordered as to him. Judgment as to the Life Insurance and Trust Co. should be affirmed.

Judgment accordingly.  