
    Joseph Sondheimer, App’lt, v. The Troy and Lansingburgh R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    Voluntary payment—Debtor and creditor—Retention by the debtor OE PART OE THE DEBT DUE A OBEDITOB—ErEECT OE.
    The retention by the debtor of part of the debt due a creditor, though made with knowledge of the creditor, is in no sense a voluntary payment of the amount retained. When a debtor pays a part of the debt the creditor is not required to refuse that part at the peril of losing the balance, should he accept what is paid him.
    Appeal from a judgment of the Albany county court, reversing a judgment of the Cohoes justice court, in favor, off said plaintiff, for fifty dollars and costs.
    This action was brought to recover the sum of fifty dollars claimed to be due plaintiff from defendant, for services; as a horse car driver. Defendant answered, general denial, payment, and for further defense alleged that while plaintiff was driving one of defendant’s cars he negligently ran his car against, and injured, the horse and wagon of oneTatrault, and therefore became liable to him for damages “that plaintiff paid said Tatrault fifty dollars for said damages and agreed with defendant that they should retain the' amount weekly from his wages; that said plaintiff had paid the sum of fifty dollars in weekly installments, taken from plaintiff’s wages,” therefore demands judgment for costs.
    On the trial Sondheimer, the plaintiff, was the only witness. He testified on direct examination that he went into> the employment of defendant in 1886, under the arrangement then made between the parties that plaintiff should be paid forty cents a trip, except short ones, which were to be thirty cents; that he remained in lis employment until the 23d day of May, 1888, and was paid in full up to January 12, 1888. Since that date he had earned at the said. prices $177.04, and had only been paid $127.04, leaving a balance of fifty dollars unpaid.
    On cross-examination he testified that he knew that these •amounts were taken out weekly during the time indicated. In answer to the question, “ Were not those amounts taken from your pay on account of injuries and damages claimed by Tatrault ?” he answered, “ they grew out of that so far as I know.” It also appeared in evidence upon said cross-examination that one of defendant’s cars, which said plaintiff was driving, came in collision with the sleigh of said Tatrault; that Tatrault claimed damages therefor from said defendant; that plaintiff, being urged thereto by one Hollis, also in defendant’s employment, went with Hollis to Tatrault and effected a settlement for fifty dollars. Plaintiff, at the same time, claimed to Tatrault that he (plaintiff) was not to blame for what had happened. Plaintiff had previously stated the same thing to Hollis. It also appeared that Hollis paid the fifty dollars to Tatrault, having, as he said at the time, to go out and borrow part of it. The plaintiff asked nobody to pay this money.
    There was no evidence that this money was furnished by the defendant to Hollis or that Hollis had ever been reimbursed therefor by the defendant.
    
      James F. Crawford, for app’lt; Peter D. Niver, for xesp’t.
   Learned, P J.

The plaintiff proved that he had earned $177 04, and had been paid only $127.04. He claimed the balance, fifty dollars.

The defendants endeavor to resist this claim by showing some payments made for plaintiff under these circumstances. The plaintiff was driver of a car which was claimed to have injured one Tatrpult. The plaintiff went to Tatrault to effect a settlement, and Tatrault agreed to settle with plaintiff for fifty dollars, and the matter was settled for fifty dollars. Samuel Hollis paid the money to Tatrault. Hollis did not get the money from plaintiff. Hollis was in the employ of defendant. Hollis had an interview with the president of defendant, and afterwards went to Tatrault with plaintiff and settled the claim. This is substantially all the evidence.

The justice of the peace rendered a judgment for plaintiff of fifty dollars, and the county court reversed it.

We may notice also that the answer avers that plaintiff paid Tatrault fifty dollars for said damages, and agreed that defendant should retain the amount from his wages; .and that plaintiff had paid the said sum of fifty dollars in weekly installments taken from plaintiff’s wages.

Now, if the evidence had shown that the defendant had paid this fifty dollars for plaintiff at his request and were-authorized to deduct the amount from his wages, the case-would be plain.

But we find no evidence that defendant paid the fifty dollars. It does not appear from whom Hollis obtained the money. And the averment of the answer is that plaintiff paid the money. The defendant’s points say that they advanced the money, but there is no proof of this.

The argument of the counsel for defendant is that the-weekly retention of part of plaintiff’s wages by defendant known to plaintiff constituted voluntary payments by the-plaintiff to defendant which cannot be recovered back. 'We think this is incorrect. The retention by a debtor of' part of a debt due a creditor, though made with the-knowledge of the creditor, is in no sense a voluntary payment of the amount retained. When a debtor pays a part of the debt, the creditor is not required to refuse that part, at the peril of losing the balance, should he accept what is-paid him.

We do not question the doctrine asserted by defendant that a voluntary payment made after knowledge, cannot be-recovered back. But the plaintiff does not seek to recover back any payment he has made. He sues for his wages,, part of which have been retained. The defendant, therefore, must show that it retained them rightfully.

We have no right to assume what might have easily been proved, if the fact were so, that defendant paid Tartraulh fifty dollars at plaintiff’s request.

Judgment of county court reversea, and that of justice-affirmed, with costs.

Lardón and Ingalls, JJ., concur.  