
    Twelfth Ward Bank v. The Columbia Publishing Company. In the Matter of the Application of Eugene C. Gilroy, as Receiver, etc., for Refund of Certain Moneys.
    (Supreme Court, Appellate Term,
    June, 1906.)
    Payment — Recovery back of payments — Voluntary payments in general.
    Appeal — Judgments and orders appealable — From Municipal Court or City Court of New York—Orders made in progress of cause — Denying motion to resettle order.
    Where a receiver in supplementary proceedings replevied certain chattels claimed to be the property of 'the judgment debtor, sold them and pai'd over the proceeds to the judgment creditor and was afterward defeated in the replevin suit, held that he could not recover the moneys paid over to the plaintiff, as such payment was made voluntarily and without any mistake of fact.
    No appeal lies from ",n order denying an application to resettle an order.
    Appeal from an order of the City Court of the city of Mew York, Special Term, denying a motion made by the receiver to compel the plaintiff to refund certain moneys' and from an order denying a motion for a resettlement.
    Charles W. Dayton, Jr., for appellant.
    Bushby & Berkeley (L. M. Berkeley, of counsel), for respondent.
   Levehtritt, J.

In an action in the City Court the plaintiff recovered judgment against the Columbia Publishing Company, the defendant. In supplementary proceedings based thereon, Eugene C. Gilroy was appointed receiver. Subsequently, in an action brought by him in the Supreme Court, he replevied certain chattels, claiming that they were the property of the Columbia Publishing Company. He made a sale thereof and turned over to the plaintiff the net proceeds, amounting to $1,000.

Upon the trial of the replevin action the complaint was dismissed. An appeal taken from the judgment entered upon such dismissal resulted in a reversal and a new trial. That action is still pending.

After the entry of the judgment against him, the receiver demanded a return of the money which he had paid to the plaintiff; that demand was refused. Thereupon he petitioned for an order directing the refund of the money. The-motion was denied on the ground, as stated in the order, that the moneys were paid by the petitioner voluntarily and without any mistake of fact.”

We think this disposition was correct.

The parties are in conflict as to the circumstances and agreement under which the money was paid over. The receiver claims that the payment was made at the request of the plaintiff and upon the promise to refund it whenever the necessity should arise; the plaintiff claims that the payment was made voluntarily and unconditionally. A well-defined question of fact is, therefore, presented and, upon its solution, the rights of the parties depend. That solution is to be had only in an action.

After the entry of the order referred to the receiver applied to resettle it, and he appeals also from the order denying that application.

An appeal does not lie from such an order. It is within the discretion of a court to modify or change an order already made by it and, over the exercise of such discretion, an appellate court has no control. Matter of ¡National Gramaphone Corporation, 82 App. Div. 593.

The appeal from the order denying the motion seeking the refund of the money paid must be affirmed, and the appeal from the order denying the motion to resettle must be dismissed, with ten dollars costs to the respondent.

Gildebsleeve and McCall, JJ., concur.

Appeal from order denying motion seeking refund of money paid affirmed, and appeal from order denying motion to resettle dismissed, with ten dollars costs to respondent.  