
    WILLIAM BUTLER DUNCAN, and others, Plaintiffs and Appellants, v. JACOB BERLIN, and others, Defendants and Respondents.
    Before Curtis and Sedgwick, JJ.
    
      Decided July 2, 1874.
    I. ATTACHMENT AGAINST PROPERTY.
    1. Factob. Deduction from proceeds of property which was levied on in his hands.
    1. What can not be made before paying over such proceeds under the attachment.
    
      a. The amount of a checlc drawn on the factor by the attachment debtor, and which check the factor on the day of the service of the attachment, but before its service, informed the holder, was good and would be paid, but did not accept in writing (the check not being presented for payment until the day after the service of the attachment), can not be so deducted.
    
    H. Repbesentation by factob of amount due fbom him to
    ATTACHMENT DEBTOB.- MISTAKE IN.
    1. Effect of.
    
    
      a. When the factor represents that the balance due by him to the attachment debtor is sufficient to satisfy the attachment debt, whereby the sheriff or attachment creditor refrains from levying on certain specific property of the attachment debtor in the hands of the factor, and it turns out that the representation was made through mistake, the balance being in fact not sufficient to satisfy the attachment debt, the effect as between the attachment creditor and factor is, that the creditor will be regarded as standing in the same position as if he had levied on the specific property.
    
    
      a. Therefore, the factor can not pay out of the proceeds of such specific property to the prejudice of the attachment debt a check, the amount of which could not, under the above stated circumstances, be deducted from the proceeds of property which had been levied on.
    
      Appeal from order at special term denying a motion for a new trial, heard on a case containing exceptions.
    The complaint alleged that on or before January 16, 1866, a firm of Blagge & Co., had money and other property in the hands of the plaintiffs, constituting the firm of Duncan, Sherman & Co. ; that on said day the defendants procured an attachment agamst the property of said firm of Blagge & Co., as non-residents, which was delivered to the sheriff; that the defendants caused said “ sheriff to serve said attachment against the said firm of Blagge & Co., upon the said firm of Duncan, Sherman & Co., and to levy upon any property or debt due to the said firm of H. Blagge & Co., from the said firm of Duncan, Sherman & Co.” That the plaintiffs informed the said sheriff at the time of said service, that they were unable to state whether “there was any sum due from them to said firm of H. Blagge & Co., but if, upon making up the two accounts, any sum was due to them, they would pay the same over to said sheriff for the use of the said defendants ;” that subsequently, and on or about May 28, 1866, the said account was made up, and an erroneous balance was made of one thousand eight hundred and sixty-one dollars and thirty-one cents, as due to H. Blagge & Co., which sum the plaintiffs, on the same day, paid to said sheriff for the use of the defendants ; that said erroneous balance was made by reason of an error and mistake of the plaintiffs or their clerks in not charging the said H. Blagge & Co. in their account a sum of one thousand dollars, which had, in fact, been paid to them before January 16, 1866, and, in fact, the true balance due to H. Blagge & Co., was eight hundred and sixty-one dollars and thirty-one cents.
    The answer admitted the above averments as to the issuing of an attachment, the service and levy thereof, the information given to the sheriff, and the payment of one thousand eight hundred and sixty-one dollars and thirty-one cents, to the sheriff for the benefit of the defendants ; but put in issue the other' averments.
    The issue was tried before a judge and jury.
    On the trial it appeared that these plaintiffs had, in their account with H. Blagge & Co., made a mistake in favor of H. Blagge & Co., in the sum of one thousand dollars.
    The firm of H. Blagge & Co. did business in Texas. H. Blagge, one of the firm, was a resident in Texas. Fell, the only other member of the firm, was a resident of Mew York. The attachment was issued against the property of EL Blagge only.
    The firm of H. Blagge & Co., sent goods from Texas to the plaintiffs, who from time to time accepted and paid bills upon them, drawn by H. Blagge, and protected themselves by the proceeds of the goods which were sold from time to time.
    On January 16, .1866, there was a balance in favor of H. Blagge & Co., of about four hundred and seventy dollars. The plaintiffs at that time had on hand, unsold, five bales of cotton, of the value of nine hundred and sixty-eight dollars and ten cents, belonging to H. Blagge & Co., and three bales of wool and three bales of cotton, of the value of five hundred and thirty-eight dollars and eighty-eight cents, also some pecan-nuts of the value of sixty dollars.
    On this day, and when the attachment was served, the defendants’ attorney had a conversation with plaintiffs’ agent, in respect of the amount in value, in the plaintiffs’ hands, on which the attachment might be levied. The plaintiffs’ agent testified that he estimated the value of the property on hand, and the cash balance, and told the defendants’ attorney, that there might be a very considerable portion of what would be required to satisfy the claim, and that it was u quite possible” that he said “that the amount would be a little short of two thousand dollars.” Upon receiving this statement, the defendants stayed a further levying of the attachment, which might have been made upon the cotton, wool and -pecan-nuts above specified. For the purpose of the trial, the action was tried, as if the property on hand on Januaiy 16, 1866. had been turned into money in the hands of the plaintiffs.
    The plaintiffs’ agent in making the statement had made the mistake in favor of H. Blagge & Co. of one-thousand dollars, and had also deducted from the general balance fifteen hundred dollars as paid or payable on - January 16, 1866, to one Leary. As to this last amount the facts were that Leary held a check of H. Blagge & Go. upon the plaintiffs, drawn by the hands of Pell, January 16, 1866, payable to Arthur Leary or bearer, for one thousand five hundred dollars. Ou that day, and before service of the attachment, Leary took the check to the plaintiffs, who told him that it was good, and would be paid upon presentation. On the same day Leary deposited the-check in his own bank, and on January 17, upon presentation to the plaintiffs, it was paid.
    . At the time of the service of the attachment, there-was in the city of New York, known to the defendants, pecan-nuts aud forty-six bales of merchandise of the value of more than one thousand dollars. These were owned by H. Blagge & Co., and had been consigned from Texas to Pell, at New York, for the purpose of being returned, because they were unsuited to the Texas market, to the person who had sold the goods to H. Blagge & Go.
    
    The defendants, having obtained judgment against. H. Blagge & Go., issued execution, and upon its presentation to the plaintiffs by the sheriff, they paid to him one thousand eight hundred and sixty-one dollars and thirty-one cents. This sum was paid over to the defendants.
    In the case at bar, the jury, under the direction of the court, rendered a verdict for defendants.
    Plaintiffs moved at special term, on a case containing exceptions, for a new trial, which motion was denied. From the order denying the motion for a new trial, plaintiffs appeal.
    
      Wm. D. White, attorney, and Hon. E. L. Fancher, of counsel for appellants,
    urged:—I. The attachment in this case could be only available to reach any sum or debt which was actually due Blagge & Co. at the time it was levied (Lanning v. Streeter, 57 Barb. 33), and then, only, when the particular debt or avails of property were specified (Id. 42).
    
    Here it is not shown that the attachment or execution had been, or could have been levied on any property beyond the actual balance in the hands of the plaintiffs. A mistaken or supposed balance was not subjected to the levy.
    II. It is plain the defendants have, through a mistake of fact, received from the plaintiffs the overpayment of one thousand dollars; and money paid under mistake of fact may be recovered back. (Bank of Commerce v. Union Bank, 3 N. Y. 230, and cases cited ; 2 Smith Lead. Cases, 237; Law Lib. 28 [N. S.] 269, and notes ; Kingston Bank v. Etting, 40 N. Y. 391.) And it is no defense, that the plaintiff omitted to use vigilance and care, by which the mistake would have been avoided. (Kingston Bank v. Etting, 40 N. Y. 391; Duncan v. Berlin, 11 Abb. Pr. [N. S.] 116.)
    
      F. C. Cantine, attorney, and A. J. Vanderpoel, of counsel for respondents,
    urged:—I. The plaintiffs can not maintain this action. They were bound to pay over to the sheriff the balances and proceeds of property of Blagge & Co. in their hands on January 16, 1866. In violation of their obligations and duty to the process of the court, they thereafter paid to Blagge <& Co. more than two thousand dollars, 1. The fact that at the time they made the payments of Blagge & Co.’s check, on January 17, for one thousand dollars, the draft on February 13, and the subsequent payments, they overlooked the fact of the payment of January 15, for one thousand dollars, and so mistook the state of the accounts, gives them no cause of action against the defendants. 2. The remedy of the plaintiffs for moneys paid to Blagge & Co. after the service of the attachment, is against Blagge & Co. If, on May 35, before the payment to the sheriff, the plaintiffs had discovered the error in the omission to charge the one thousand dollar check it would have been no defense for them in a suit by the sheriff, that they had by mistake, after the service of the attachments, paid Blagge & Co. all but eight hundred and sixty-one dollars and thirty cents.
    II. If the new matter upon which the first point is based did not exist, and the case had stood in that behalf, in the same condition as it did when previously before the court, the conduct of the plaintiffs wo eld have estopped them from, maintaining this action. 1. The plaintiffs repeatedly told the sheriff and the defendants’ attorney that they had sufficient propej+y in their hands belonging to Blagge & Co. to pa? the claim ci the defendants; and the sheriff tL'i.K'Upo*. abandoned further pursuit for other property. 3. After receiving payment from the plaintiffs, the sheriff" returned the execution “satisfied,” and the judgment was thereupon canceled and satisfied. The cemsequence was, that the defendants lost any líen th:-y might have had upon the property of Blagge & Co,, and the rights of the subsequent creditors of that f- 'in. immediately attached. The facts of this case are clearly within the principle of the following authorities, viz.: (Continental National Bank v. National Bank of Commonwealth, 50 N. Y. 575, 583 ; Dezell v. Odell, 3 Hill, 216 ; Regney v. Smith, 39 Barb. 383; People v. Reeder, 25 N. Y. 302, citing and approving Dezell & Odell, supra; Manufacturers’ Bank v. Hazard, 30 N. Y. 280, where an equitable estoppel is defined ; Price v. Neal, 2 Burr, 1354). 3. It now appears, that in consequence of the statements and assurances given by plaintiffs to the deputy sheriff, and to Mr. Cantine, as attorney for the attaching creditors, that the creditors caused the sheriff to cease following and holding on to other property of the debtors, Blagge & Co., which was liable to attachment. By the negligence of the plaintiffs in making the mistake,, the creditors have been prejudiced.
   By the Court.—Sedgwick, J.

The learned judge was bound in directing a verdict for the defendants, to construe the evidence most favorably for the plaintiffs. It is apparent from Mr. Batching’s evidence, considered with the undisputed facts of the case, that on January 16, 1866, when the attachment was about to be served, he clearly asserted that there would be sufficient property to pay the defendants’ claim. The property on hand, was deemed, between the parties, and was so treated on the trial, as cash in pl’aintiffs’ hands. He further testifies, that in making his calculations, he deducted the drafts of which the plaintiffs had been advised. One of these was held by Leary, and was for one thousand five hundred dollars.

Beyond the burden of proving affirmatively the cause of action, there is here an admission, that if this one thousand five hundred dollar draft was not properly chargeable against the goods, which were pursued, by the attachment, there might have been seized property sufficient to satisfy the defendants’ claim, after deducting the mistake of one thousand dollars, which no doubt was made. The accounts in evidence, and the oral testimony, furnish facts enough to show that the admission was not erroneous, and almost sufficient of themselves to show that a levy might have been made, which would have secured the defendants. The accounts show that, aside from goods on hand, the proceeds of which had not been received, and correcting the mistake of one thousand dollars, there was a cash balance in favor of H. Blagge & Co. of four hundred and seventy dollars, on January 16, 1866. Mr. Kitching testifies there were on hand five bags of wool, which the accounts show to have been of the value of nine hundred and sixty-eight dollars and ten cents. Further the testimony shows that the steamer Leary, which had arrived January 13, had three bags of cotton and three bags of wool, which the accounts show to have been of the value of five hundred and thirty-eight dollars and eighty-eight cents. In addition, Mr. Kitching shows there were pecan-nuts of the value of sixty dollars, all these might have been seized under the attachment, if the defendants had pushed proceedings under the attachment in the manner they had adopted, but which they stopped in consequence of the statement of the plaintiffs’ agent.

We say here that no question has been made as to whether there was a technically correct service. These matters seem to have been waived from first to last On the argument of the appeal, a substantial point wat raised, that in fact the attachment was only against the individual property of H. Blagge. But as to the goods in question, and which were consigned to the plaintiffs, we think the pleadings prevent that question being raised.

Therefore, on the trial, if the judge was correct in finding that the one thousand five hundred dollars was not properly to be charged upon the property on January 16,1874, it seems to me, that the case showed beyond doubt, that by relying on the erroneous statement oí' the plaintiffs, the defendants were prejudiced to an amount sufficient to satisfy their claim.

1 he questions we consider relate to the perfecting ■of t1 e lien of the attachment on January 16.

Leaving aside any inqinry as to whether Leary, was holder of the check for value, or whether there is any presumption that he would have been injured by the non-payment of the check on January 17, it seems olear to me, that whatever the personal obligations of the plaintiffs to Leary might have been on January 16, because they said the check was good, and could be paid, the fact was that that transaction did not lessen the fund of money and property, which the defendants would have had the opportunity and right to attach. There is no evidence that the defendants knew or acquiesced in the amount of the check being deducted.

On this ground, I am of opinion that the order denying the new trial should be affirmed.

There were other goods, consisting' of pecan-nuts and forty-six packages of merchandise on board the ■steamer Leary, which the defendants insist they might have seized if they had not relied on the plaintiffs’ statement. As these were not consigned to the plaintiffs, and were not under their control, the averments of the complaint do not make an admission of record, perhaps, that as to them the attachment bound the goods of H. Blagge & Co. As it was issued against the property of Pell individually, it is doubtful at least, whether seizing these goods under the attachment would have been a levy upon anything but Pell’s interest in them. As to the value of that interest, no proof was given, and no judgment could be formed, as to the extent of the detriment the defendants suffered by not making the levy. I do not rest, therefore, the decision upon these facts.

The order should be affirmed, with costs.

Sedgwick, J., concurred.  