
    Hipolito Dumois and Others, Appellants, v. William Hill and Others, Respondents.
    
      Payment — to one of two independent claimants — when not recoverable by the other — nuisance existing upon premises when leased,— the lessor is entitled to the damage caused by depreciation in rental value.
    
    If two or more independent claimants apply to the debtor for payment, and the-debtor pays the claim not entitled to be paid, the unsuccessful claimant cannot maintain an action for money had and received against the successful claimant-to recover the money thus paid to the latter. (Per Pryor, J.)
    As the action for money had and received proceeds upon equitable principles, it is defeated by an equal -equity in the opposite party, and he can never be compelled to return what he may keep in good conscience.- (Per Pryob, J.)
    The complaint in an action alleged that the defendants leased to the plaintiffs for a period of five years from January 1, 1891, Pier 13 and the east half of Pier 12; that before January 1, 1891, the city of Hew York had maintained a nuisance, consisting of a dumping.board, on the west half of Pier 12, which the defendants had brought an action, still pending, to compel the city to remove, which was not affected by the lease; that on January 6, 1894, the defendants brought still another action against the city to recover damages for the use and occupation of the easterly half of Pier 12, claiming therein that this had been used as a dump, and that they were entitled to wharfage from the easterly half of Pier 12, and to one-half of the wharfage accruing from the outermost end of that pier, and charging that the dumping board on the westeriy half of the pier had diminished the wharfage that they would otherwise have received.
    The complaint in the present action also alleged that the complaint in the last- ■ mentioned action stated that the defendants in the present action were entitled to the wharfage for the easterly half.of the pier; that the latter action against the city' was settled by certain payments made to the defendants, which, as the complaint alleged, were paid to them for the use of the plaintiffs.
    To this complaint a demurrer was interposed.
    
      Held, that the action could not be maintained;
    That the.payment by the city to the defendants was made upón a claim which the defendants asserted in their own right, and was not a,payment made to or for the use of the plaintiffs;
    That consequently the plaintiffs could not recover it;
    That the complaint was not maintainable as one in what was formerly known as an action on the case;
    That as the defendants. never were the agents of the plaintiffs to collect these damages, the plaintiffs could not make them such by stating in a pleading that they elected to consider them as such and ratified their.ácts;
    That the action' depended primarily upon the loss of rental value caused' by the nuisance which existed when the plaintiffs hired the premises, and because of which the rent was undoubtedly reduced by the defendants, and'that consequently they, and not the plaintiffs, were entitled to recover for any decrease in the rental value; .
    That upon the pleadings it seemed probable that the city paid the damages to the right parties.
    . Appeal oy the plaintiffs, Hipólito Dumois and others, from a final judgment of the Court of Common 'Pleas for the'city and county of Hew York in favor of the defendants, entered in the office of the clerk of said court on the 21st day of December, 1895, • dismissing the complaint, and also from an interlocutory judgment entered in said clerk’s office on the 25th day. of Hovember, 1895, upon the decision of the court rendered after a trial at a Special Term of' said court sustaining the defendants’ demurrer to the first cause of action contained in the amended complaint.
    Plaintiffs’ first cause of action alleges that the defendants leased to the plaintiffs and other parties all their interest in the easterly half of Pier 12, East river, and in the whole of Pier 13, East river, together with all their rights of wharfage and cranage, and all other rights connected with the use of said piers, for a period of five years from January 1, 1891; that previously to the execution of this lease the city had. unlawfully erected and maintained upon the westerly half of Pier 12 a nuisance, namely, a dumping board, and that an action brought by the lessors was then pending to compel the city to remove this dumping hoard, and that the lease contained a covenant that nothing therein should prejudice or affect that suit. The complaint then goes on to state that the plaintiffs are the successors in interest of all the other parties who were originally lessees; that since the execution of the lease, to wit, on January 6, 1894, the defendants, Without the knowledge of the plaintiffs, commenced an action against the mayor, aldermen and commonalty of the city of Hew York to recover damages “for the use and occupation of the easterly half of said Pier/12” by the street cleaning department for the purpose of a dump, claiming that they were entitled to wharfage accruing from the easterly half of said Pier 12, and to one-lialf of the wharfage accruing from the outermost end of said pier, and charging that the city had erected upon the westerly half of the said pier a dumping board which diminished the wharf-age which would otherwise have accrued to them, etc. It further avers that the complaint in said latter action alleged that the present defendants were entitled to the wharfage for the easterly half of said pier, whereas the present plaintiffs were so entitled from and •after January 1, 1891, when their lease began; that this action was settled by a payment of $400 a month from May 1, 1885, to January 1,1894, with interest on the payments from their respective dates, and on the whole sum from January’1, 1894; and that .$14,400 of this amount, or the payments accruing from January 1, 1891, to January 1, 1894, represented damage suffered By the plain- . tiffs, and was paid to the defendants to and fpr their use. What became of the original suit referred to is not stated. The judgment demanded was $14,400, with interest on $400 from February 1, 1891, and from the first of each succeeding month during said period, and on the whole amount, with the interest already accrued, from January 1, 1894. This cause of action was demurred to upon the ground that it did not state facts sufficient to constitute a cause ■of action.
    
      Henry W. Goodrich, for the appellants.
    
      Thomas G. Shecvrmam,, for the respondents.
   Barrett, J.:

We need add but little to'the satisfactory opinion of Pryor, J., upon the demurrer to the original complaint. The present defendants, in their action against the city, claimed the damages in their own right. The present plaintiffs say that these damages were clearly theirs. But that does not help them. If they were entitled to these damages, their rights were not affected by the payment to the defendants. If they have a just claim against the city, they can still assert it. The payment to the defendants was not to their (plaintiffs’) use, but, as they insist, to the defendants’ sole use, and, therefore, wrongful. It is well settled, under such circumstances, that an action for the sum paid will not lie by the party really entitled to it against the party who recovered it in his own right. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 450 ; Rowe v. The Bank, 51 id. 674 ; Decker v. Saltzman, 59 id. 275; Peckham v. Van Wagenen, 83 id. 40 ; Sergeant v. Stryker, 32 Am. Dec. 404.)

The plaintiffs now abandon the contention that this is an action for money had and received tó their use. They say that they elect to make the defendants their agents for the collection of their damages, and that they ratify said collection, although it was wrongful.. This they call an action on the case. It has none of the elements of such an action. There is such a thing as affirming or disaffirming the unauthorized acts of one’s agent, but there must first be an. agency. There is no such thing as creating an-agency contrary to the fact by a process of election. The pleader must have been thinking of the. equity principle which sometimes converts a party into a trustee ex maleficio. Here, however, there was no trust- or agency,, and there were no facts upon which any such relation could reasonably be asserted. As was said by Parker, J., in Patrick v. Metcalf (supra),There is no ground for making defendants trustees of the money for the plaintiffs.” Still less agents. The defendants claimed what in their view was their own. That claim was necessarily in hostility to any other claim to the same demand. The rights oí the parties run upon different lines. These lines do not .converge either in law or fact.

It may be added that it is by no means certain that the plaintiffs were entitled to these damages. The complaint avers that the recovery against the city was for the use and occupation of the pier for the purpose of a dump, and for the consequential loss of wharf-age. Whatever may have been the form of that action, it necessarily proceeded upon the diminution of rental value by reason of the nuisance. The nuisance was upon the property when the present plaintiffs leased it, and they undoubtedly paid less rent in consequence of its probable continuance. That being the case, the lessors were entitled to recover for such diminution in rental value. (Kernochan v. The N. Y. El. R. R. Co., 128 N.Y. 559.) The action in which the damages were recovered was substantially the same as that referred to in the lease. It may have been different in form, but it sought redress for the wrong done by the dumping board. Whether such redress was obtained in one form of action or another is unimportant.. However, the real damages, namely, the diminution in rental value, may have been asserted and recovered, whether such diminution was called damages for loss of wharfage or damages for loss of wharfage rent, the practical result was the same. It follows that if the claim was asserted and recovered because of the loss rea,lly sustained by the' lessors, they were acting rightfully in their own behalf. Whether acting rightfully or wrongfully, however, the plaintiffs have lost nothing to which they were legally entitled, and their present action must fail.

The judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., Rumsey, WilliaSis and Patterson, JJ., concurred.

Judgment affirmed, with costs.. 
      
       The following is the opinion of Judge Pryor
      Pryor, J.:
      In substance the complaint states: A lease by defendants to plaintiffs of piers in Bast river, and actions by defendants against the city of New York for injury to the piers, and judgment in their favor for the sum of $52,330.01, damages they had sustained by the injury to. the piers, the wrongful receipt of this money by the defendants, because the money so received by them embraced the damages occasioned to the plaintiffs by the injury to the piers ; a demand of judgment for a sum equivalent to the damages sustained by the plaintiffs from the injury to the piers.
      The concession in the complaint that the money recovered by the defendants was for the damage they had sustained by the injury to the piers is at once fatal to the complaint, since it admits that the money was not received to the plaintiffs’ use, but in reparation of a wrong the defendants themselves had suffered; and so the defendants are not bound ex (zguo et hono to refund to the plaintiffs The action for money had and received, proceeding upon equitable principles, is defeated by an equal equity in the defendant; and he is never held to return what he may keep with a good conscience. (2 Greenl. on Ev. § 117; note to Kingston Bank v. Etlinge, 100 Am. Dec. 523; Buel v. Boughton, 2 Den. 91, 98; 4 Wait’s Act. & Def. 511.)
      As this allegation in the complaint may have been unnecessary and inadvertent, and as it is desirable to dispose of the demurrer upon grounds which no amendment may obviate, I shall assume the pleading to state the transaction in the aspect most favorable to the plaintiffs, namely, that the city of New York was liable to the plaintiffs in the sum they,demand for injury to their interest in the piers, and that this sum the defendants have received from "the city upon an invalid claim that it was due to them. Still the action is untenable.
      The principle decisive of the case is, “ that if two or more independent claimants * ** * apply to the debtor for payment, and the debtor pays the claimant not entitled thereto; the unsuccessful claimant cannot maintain an action for money-had and received against the successful claimant to recover the money so paid. * * * If, however, the payment, though made to the wrong person, operates as a payment of the claim, so that the rightful claimant can no longer assert his claim against the party paying, then it would seem that the defendant has in fact received money which belonged to the plaintiff, and that the plaintiff should beallowed to recover the money so paid.” (Keener on Quasi Contracts, 168.)
      That the city’s liability to the plaintiffs was not discharged by the payment to the defendants is settled by conclusive authority. (Atlantic Dock Co. v. Mayor, etc., 53 N. Y. 64; Rowe v. Bank, 51 id. 674; Hathaway v. Town, 54 id. 655; Sergeant v. Stryker, 32 Am. Dec. 404, 405.)
      This being so, the invalidity of the plaintiffs’ contention is clear beyond controversy. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 450; Rowe v. The Bank, 51 id. 674; Hathaway v. The Town, 54 id. 655; Decker v. Saltzman, 59 id. 275; Peckham v. Van Wagenen, 83 id. 40; Fox v. M’Comb, 18 N. Y. Supp. 611; Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 id. 337 ; Hall v. Carpen, 27 Ill. 386; 29 id. 512; Kelley v. Lindsey, 7 Gray, 287; Sergeant v. Stryker, 52 Am. Dec. 404, a case identical in principle with the present, and instructive in its exposition of the.action for money had and received.)
      Demurrer sustained, and judgment for defendants.
     