
    J. Ogden Abmour, Plaintiff, v. Sound Shore Front Improvement Company, Defendant.
    (Supreme Court, New York Special Term,
    March, 1911.)
    Execution of written instruments — Formal requisites—In general — Descriptive designation of parties in body of instrument.
    Jurisdiction—Domicile of party or location of subject-matter as affecting jurisdiction — Foreign corporations.
    Payment — Recovery back of payments — Recovery of excessive payment.
    v Where a nonresident of this State purchases. land in another State from a corporation under a contract of sale hy the acre and the purchase price is paid in this State, an action to recover an excessive payment thereon made by mistake because of a deficiency in the acreage is maintainable in the courts of this-State under section 1780 of the Code of Civil Procedure after a demand and refusal to pay.
    Where the contract of sale was made by the agent of the purchaser individually, and the deed of conveyance was to the purchaser “ trustee ” and to his heirs and assigns, the word “ trustee ” being, merely deseriptio personae, the plaintiff who as an individual had paid the purchase price was entitled under section .499 of the Code oh Civil Procedure, as the real party in interest, to recover the excessive payment.
    Demurrer to the affirmative defenses contained in the ans.wer.
    Breed, Abbott & Morgan (Henry H. Abbott, of counsel), for plaintiff, in support of the demurrer.
    Eugene Lamb Richards, Jr. (Rutherford B. Meyer, of counsel), for defendant, in opposition.
   Lehman, J.

The complaint alleges that the defendant entered into a contract with one Chandler acting for and on behalf of the plaintiff, whereby the said Chandler agreed to purchase and the plaintiff agreed to sell a certain tract of land in Hew Jersey at the rate of $7/00 O' per acre, the exact amount of acreage in said property to be. determined by the official surveyor of the Hew Jersey Title Guarantee and Trust Company and the title to be passed at 150 Broadway, Hew York city; that thereafter the parties employed a surveyor to make the survey of the property to determine the acreage, and that the surveyor did survey the property, and prepared a map and certified on the map that the property ■contained 17.02 acres; that thereafter the defendant in the city of Hew York tendered a deed which the plaintiff accepted, and the plaintiff paid the defendant the sum of $119,140, being $7,000 multiplied by 17.02; that the deed described the distances as shown on the map made by the surveyor, and the plaintiff paid the sum mentioned and the defendant accepted such payment in reliance upon the said survey and believing that the lines extended for the distances stated in said deed and that said property contained 17.02 acres; that the plaintiff learned and the facts are that the distances are incorrect and that the number of acres conveyed to the plaintiff'by the defendant was but 14.499; that, relying upon the erroneous survey, the plaintiff paid the defendant by mistake at the rate of $7,000 for 2.52 acres of land more than was contained in the property to which he obtained title, and that, by reason of such overpayment, the defendant is -indebted to plaintiff in the sum of $17,647, payment of which was duly demanded of the defendant at its office in the city of ¡New York and there refused. Incorporated in the complaint are copies of the contract, receipt of payment, and deed. The contract is in the name of Elisha E. Chandler, acting for J. Ogden Armour;” the receipt is in the name of J. Ogden Armour, represented by ¡R. W. Shauman; and the deed is to J. Ogden Armour, trustee.

The answer of the defendant contains three affirmative defenses, denominated the second,. third and fourth separate defenses, to which the plaintiff demurs. The second separate defense sets up that the plaintiff is a non-resident, the defendant is a foreign corporation, that the cause of action is for an alleged mistake which arose from a survey by a resident of ÜSTew Jersey made in ¡New Jersey and affects the title to 2.521 acres of land in ¡New Jersey and that, therefore, the court has no jurisdiction of the parties or the subject-matter of the action. Under the provisions of section 1780 of the Code, the court has jurisdiction over actions brought to recover damages for the breach of a contract made within the State, or where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State. It seems to me that this court has jurisdiction under either provision. Where money is paid under mutual mistake of fact, it may be recovered after demand in an action for money had and received. While proceeding on equitable principles, this is a. common-law action. Weston v. Brown, 158 N. Y. 360.

* * money in the hands of one person, -to which another is equitably entitled, "may be recovered in a common law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled.” Robert v. Ely, 113 N. Y. 128, 131. The law “ implies a contract on the part of the plaintiff to repay it to the party from whom he had wrongfully obtained it.” Andrews v. Artisans’ Bank, 26 N. Y. 298, 301. The classification of actions and defences does not, in the Code, or by the ancient practice, recognize any distinction between express and implied contracts.” Id. 301. An action upon contract may be maintained on quasi contracts, or contracts implied in law. Pache v. Oppenheim, 93 App. Div. 221. Since the action is brought for breach of the implied contract to repay the money on demand, it seems to me that it falls- within subdivision 1 of section 1180'. The implied contract is certainly made where the money is received, and the place where the contract was entered into under which such payment is made is immaterial. In view, however, of the distinction drawn in the ease of Pache v. Oppenheim, supra, between the actions upon an implied contract and actions for damages for breach of a contract, I prefer to put my decision on the third subdivision of that section, although I believe that this distinction ■ was intended by the court to apply only to the peculiar statute then under consideration.

The money was paid in Hew York, demanded in Hew York and refused in Hew York. The cause of action, therefore, arose in this State. It is based not on the mistake of the surveyor, hut on the mistake of the parties in relying on that survey as to the amount of land conveyed, and that mistake was made at the place where the money was paid and the deed accepted. The object of the action is not to affect the title to real estate but to recover money. The plaintiff claims, and by its demurrer the defendant admits, that both parties are agreed as to the particular land intended to be conveyed and actually conveyed by the deed, and the alleged mistake is only as to the size of that property. A question of real property law may be involved, but its determination will not change or affect the title to any part of this land, but will only determine the amount which the parties agreed should be paid. Even if a question of title should be involved, there is no dispute that defendant parted with his whole title; and, if it should be determined that he did not have title to part of the land, this cannot bind any third party who may own the land nor affect his title. See Maier v. Rebstock, 68 App. Div. 481.

It follows that the demurrer to this separate defense must be sustained.

The third separate defense alleges that the plaintiff, in taking the deed and in paying the money therefor, was acting as trustee for some person or corporation under some trust, and that he has no capacity to sue in an individual capacity. The contract, as stated above, is expressly made by the agent of the plaintiff, individually. The complaint states that the money was paid by the plaintiff individually, and the deed was made to J. Ogden Armour, trustee, and to his heirs and assigns. The word “ trustee ” is, therefore, merely a description of the person. Von Schaick v. Lese, 31 Misc. Rep. 610. There is nothing to show that' plaintiff is not the real party in interest; but, even if it should be true that he was acting only as trustee, yet the contract was made in his name, the trust was undisclosed, and a recovery by him individually would bar any action by him as trustee. He is, therefore, permitted to bring the action in his own name, within the provisions of section 449 of the Code.

The fourth separate defense contains merely an allegation that plaintiff is not the real party in interest and is open to all the objections made to the third separate defense.

Demurrer must be sustained, with costs.

Demurrer sustained.  