
    ECKERT v. LENNERT.
    (Superior Court of Buffalo, General Term.
    December 21, 1892.)
    1. Parties—Action to Recover Overpayment—Real Party in Interest. Where one who has jointly with another contracted to buy land, and who is to furnish the purchase money, by mistake overpays the vendor, he may, after a transfer to him by his covendee of all his right in the property, sue to recover back such overpayment without joining his covendee; Code Civil Proc. § 449, providing that every action shall he brought in the name- of the real party in interest.
    2. Same—Partnership Money. Assuming that the money furnished by plaintiff to pay for the land was partnership money, it was only so to the amount agreed upon as the purchase price of the land, and the overpayment belonged to plaintiff.
    Appeal from municipal court.
    Action by Thomas Eckert against Michael Lennert to recover money paid by mistake. From a judgment dismissing the complaint, plaintiff appeals. Reversed.
    Argued before TITUS, C. J., and HATCH and WHITE, JJ.
    W. G. Kilhoffer, for appellant.
    M. A. Gerous, for appellee.
   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. Alter the purchase was made, Enders transferred all his right and interest in the property to plaintiff. Thereafter the 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 par- ■ ties. 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 arid 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 w'as 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 w'as responsible for the mistake, etc.; but that question would be entirely independent of the joint venture, except as the circumstance furnished the occasion for the mistake. Since the mistake was made, Enders has partéd 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 (section 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 his complaint should be reversed, with costs. All concur.  