
    The Mayor, Aldermen and Commonalty of the City of New York, Plaintiffs and Appellants, v. Henry Erben et al., Defendants and Respondents.
    1. Exceptions to findings of fact, on an appeal from a judgment on the report of a Referee, are not required. And where exceptions to the conclusions of law, found by the Referee, are not taken by the making of a case, or by the filing of written exceptions, within ten days after judgment, none can be entertained upon an appeal, but the case is to be heard solely upon the exceptions taken at the trial.
    2. A person in whose favor an award was made for the value of land taken by a Municipal Corporation for a public improvement, received payment from the officers of the Corporation, of a sum much larger than the amount actually awarded him, but no more than he was advised he was justly entitled to, he being informed by the officers of the Corporation, and in good faith believing, that the sum paid was the amount awarded, and thereby being induced not to file exceptions to the award; and the Corporation took the property and for more than two years made no attempt to recover the over-payment.
    
      Held, That the Corporation could not after that recover it back. The rule with respect to voluntary payments is, that if a party has actually paid what the law would not have compelled him to pay, but what in equity and good conscience he ought, he cannot recover it-back again in an action for money had and received.
    3. Evidencie of these facts in defense to the action of the Corporation to recover back such alleged over-payment, is admissible under the defendant’s denial of the allegations of the complaint that the over-payment was money, “ not of right due and payable, and a payment made under a mistake of-fact on the part of the plaintiffs.”
    (Before Moncrief and Monell, J. J.)
    Heard, January 5,
    decided, January 31, 1863.
    This was an appeal from a judgment entered upon the report of George W. Stevens, Esq., Referee, in favor of each of the defendants against the plaintiffs'.
    The material facts of the case, as found by the Referee, were as follows:
    The defendant, Erben, up to the time of the award hereinafter mentioned, was the owner in fee of three lots of land in Center street, in the City of New York, which were worth about $12,500 each, and the defendants, The New York Life Insurance and Trust Company, held a mortgage thereon for the sum of $4,500. The plaintiffs took proceedings for the opening and extending of Canal street, in the course of which one of the lots and a part of each of the others were required to be taken for the public use.
    The defendant, Erben, attended before the commissioners of estimate and assessment who had been appointed at the instance of the plaintiffs, from time to time, upon their request, and was informed by the commissioners that the amount awarded to him for the land to be taken was about the sum of twenty thousand dollars, over and above the amount assessed against him for the benefit to the other property owned by him within the line of the proposed improvement.
    The commissioners afterward made and filed with the Street Commissioner of the city, their report, in and by which they, among other things, awarded to Erben, for the parts of lots, the sum of nine thousand and fifty dollars, out of which a sufficient sum was to be paid to the defendants, The Hew York Life Insurance and Trust Company, to satisfy their mortgage thereon, and also awarded to Erben, for the whole lot taken, the sum of six thousand seven hundred and fifty-five dollars, out of which a sufficient sum was to be paid to the defendants The Hew York' Life Insurance and Trust Company, to satisfy their mortgage thereon.
    At the time of the making of the report, or at any time previous thereto, there was but one mortgage, which was a lien upon the said lots or parts of lots, which mortgage was executed by Erben, to the Life Insurance and Trust Company, to secure a single sum of four thousand five hundred dollars, with interest thereon.
    After the report to the commissioners was so filed, Erben called at the office of the Street Commissioner of the city, and requested of the clerk there, permission to examine the report. The report was not shown to or examined by Erben, but in lieu thereof he was informed by the clerk, and believed, that the amount awarded to him for damage was about the sum of twenty thousand dollars, over and above the amount assessed against him for benefit to other property owned by him within the line of the improvements; which assessment amounted to the sum of four thousand dollars, or thereabouts, upon which information Erben relied, and he had no other knowledge or information upon the matter.
    Afterward, and on or about the tenth day of May, 1855, upon Erben’s demanding the same as due under the report, the plaintiffs made and delivered to the Life Insurance and Trust Company two warrants drawn upon a bank, both payable to the order of Erben, and to the order of the Life Insurance and Trust Company, one of which was for the sum of thirteen thousand five hundred and fifty dollars, and the other for the sum of eleven thousand two hundred and fifty-five dollars, both of which warrants were duly indorsed*by the defendants, and were afterward paid by the bank, to the Insurance and Trust Company, and for which warrants a receipt was signed by the defendants.
    The Insurance and Trust Company had no notice or knowledge of the amount awarded to the defendant Erben, other than that contained in the warrants and receipts, and they received the warrants, and the money paid thereon, for the purpose of making distribution of such money as between themselves and Erben, and not otherwise; and after the receipt of the money they made distribution thereof by retaining the sum of about $4,500, due on their mortgage, and by paying over to Erben the sum of twenty thousand six hundred and eighty dollars and fifty-seven cents, which was the residue of the fund.
    The Referee further found that the plaintiffs voluntarily made and delivered the warrants to the defendants, with full knowledge of the several matters stated in the report of the Commissioners. And as conclusions of law he stated that the plaintiff, having voluntarily paid the sum of money above mentioned, could not maintain this action for the recovery of any part thereof; and that each of the defendants were entitled to judgment, with costs.
    
      The plaintiffs took exceptions, both to the findings of fact and the conclusions of law, of the Referee; and appealed from the judgment entered thereon.
    
      George R. Thompson, for plaintiffs, appellants.
    I. The Referee erred in admitting the evidence as to th validity and correctness of the proceedings of the Commissioners of Estimate and Assessment, and as to the sufficiency of the award made by them to the defendants.
    
      (a.) The whole subject matter of the extension and the report was res adjudicata, and it was not competent in this action to inquire into it. (2 Rev. L. of 1813, 413, § 178; Matter of Canal and Walker streets, 2 Kern., 406.)
    (&.) If Erben had any objection to the award, the statute provided a remedy, and if he neglected to oppose the confirmation of the report, he cannot do so in. an action of this kind. ' The only way to review these proceedings is by certiorari. (The Trinity Church v. The Mayor, &c., 10 How. Pr., 138; Wilson v. The Mayor, &c., 4 E. D. Smith, 675, in which all the authorities are collected and cited by Woodruff, J.; see, also, 1 Seld., 376, and 7 Barb., 127, 133.)
    (c.) Erben had every means of ascertaining the true amount of the award, and neglected to do so. It was his duty to do something more than merely inquire.
    II. The Referee erred, in finding as matter of fact, that the plaintiffs gave the warrants with full knowledge of the true state of the case; and in concluding as matter of law, that the plaintiffs having voluntarily paid the excess cannot recover it back by action.
    
      (a.) The mere knowledge of an agent of the plaintiffs that the defendant Erben was not entitled to the money does not make this a voluntary payment on the part of the corporation within the decisions.
    As to the rule in relation to voluntary payments, see Utica Bank v. Van Gierson, (18 Johns., 485;) Waite v. Leggett, (8 Cow., 195, 198, note.)
    
      
      (b.) A voluntary payment by the city can only be made by a vote of the Common Council.
    
      William Betts, for defendants, The New York Life Insurance and Trust Company, respondents.
    
      Albert Mathews, for defendant Erben, respondent.
    I. The burden of proof was on the plaintiffs, (Wyman v. Farnsworth, 3 Barb., 369; Elting v. Scott and Seaman, 2 Johns., 157,) and the exceptions to the admission of irrelevant testimony cannot avail the plaintiff. (High v. Wilson, 2 Johns., 48; Hayden v. Palmer, 2 Hill, 209; Ledyard v. Jones, 3 Seld., 554; Lowery v. Steward, 3 Bosw., 515.)
    H. A demand before suit, was necessary. (Abbott v. Draper, 4 Denio, 51.)
    III. The defendants having claimed as matter of right, and the plantiffs having voluntarily made the payment to the defendants, with full knowledge of all the matters stated in the report of the Commissioners, they cannot maintain this action. (High v. Wilson, 2 Johns., 48; Brisbane v. Dacres, 5 Taunt., 143; Abell v. Douglass, 4 Denio, 305; Wyman v. Farnsworth, 3 Barb., 369; Wilson v. Ray, 10 Ad. & El., 82; Bilbie v. Lumley, 2 East, 469 ; Mowatt v. Wright, 1 Wend., 355 ; Supervisors of Onondaga v. Briggs, 2 Denio, 26; Sandford v. The Mayor, &c., of New York, 33 Barb., 147 ; Morris v. Tarin, 1 Dall., 148; Irvine v. Hanlon, 10 Serg. & R., 219.)
    IV. This is of necessity an action “ for money had and received,” and is an equitable action. The question is not whether the defendant could have recovered the money eitherat law or in equity; but conceding he could not, whether in equity and good conscience, under a full view of all the facts and circumstances, he can be permitted to retain it. (Denby v. Moore, 1 Barn. & Ald., 123 ; Farmer v. Arundel, 2 Black, 824; Price v. Neal, 3 Burrows, 1354 ; Franklin Bank v. Raymond, 3 Wend., 69; Eddy v. Smith, 13 Wend., 488; Buel v. Boughton, 2 Denio, 91; Moses v. Macfarlan, 2 Burrows, 1012; Bize v. Dickason, 1 T. R., 286 ; Brisbane v. Dacres, 5 Taunt., 143.)
    
      Y. The defendants are not estopped from showing the truth.
    1. It is competent in a Court of equity, for the purposes of justice, to look behind the record of a judgment, to ascertain the legal relationship existing between the parties thereto- prior to the recovery. (Bangs v. Strong, 4 Comst., 315.)
    ' 2. A Court of equity will grant relief against a judgment to prevent injustice upon the ground of fraud, accident or mistake. (Foster v. Wood, 6 Johns. Ch. R., 87; Huggins v. King, 3 Barb., 616.)
    3. A Court of law, also, may sometimes, even collaterally, disregard the apparent estoppel of a judgment, to prevent injustice arising from fraud or mistake. (Cobb v. Curtis, 8 Johns., 470; Cameron v. Fowler, 5 Hill, 306.)
    4. This is a form of action in which the broad equity of the transaction is unfolded, and in which the technical rules'of law do not prevail. (Per Kent, Ch. J., in Coulon v. Green, 2 Caines, 154.)
    5. Moreover, it must be borne in mind that, although the report of the Commissioners, when confirmed, may be claimed to be final and conclusive, so far as to vest the title to the land taken in the Corporation, it is not clear that, as proved, it has the effect of a judgment as respects the amount of money to be paid therefor. (Davies’ Laws of New York City, sec. 178, p. 529.)
    
      (a.) The proceedings and the order confirming the report, being a -special proceeding, could not be deemed of the force and validity of a judgment record without proof of the preliminary proceedings showing jurisdiction. e
   By the Court—Moncrief, J.

This action was brought in the year 1858, to recover from the defendants the sum of nine thousand dollars and interest from May 10,1855, upon an allegation that said sum “was an excess of an amount awarded, and of right due and payable to the defendant Erben; that said payment was made under a mistake of facts'on the part of the plaintiffs,” &c. The action was referred by consent of parties to a referee who reported in favor of the defendants in November, 1861. Judgment was entered upon this report on the 18th day of November, 1861. Exceptions to the conclusions of fact and of law found by the Referee, appear to have been filed in the month of January, 1862. . Without attempting to give in detail the testimony sustaining each of the findings of fact as set forth in the case upon this appeal, it must suffice that in my opinion no error was committed by the Referee in that regard. Exceptions to findings of fact are not required. (Hunt v. Bloomer, 3 Kern., 341; Johnson v. Whitlock, Id., 346.) Where exceptions to the “ conclusions of law ” found by the Beferee are not taken by the making of a case or by the filing of written exceptions within ten days after judgment, none can be entertained upon an appeal, and the case is heard solely upon the exceptions taken at the trial. (3 Kern., supra; Magie v. Baker, 4 Id., 435.)

The appellants argued “as one of the principal questions on this appeal, the exceptions to the ruling of the Beferee in allowing evidence as to the validity and correctness of the proceedings of the Commissioners of Estimate and Assessments, and as to. the sufficiency of the award made by them to the defendants.” The complaint averred the payment of a certain sum of money “ not of right due and payable, and a payment made under a mistake of fact on the part of the plaintiffs.” There is no pretense that the defendant Erben was guilty of a wrong in accepting the amount actually paid to him, or that he believed or had reason to- suppose he was taking what was not of right due and payable to him. True it is, the Commissioners in their report awarded to him a sum, nine thousand dollars less than the sum he actually received, but it is also true that he had inquired and had been advised, and had no reason to doubt that he would be awarded the just and- fair, value of his property; that he would be entitled to receive the exact sum actually paid to him; the Commissioners so told him; the sum paid was the fair and actual value of the land taken from the defendant Erben; in fact the rule adopted by the Commissioners for measuring the valuation of property to be taken, entitled him to a .larger -sum than was paid to him; he was advised at the office of the Street Commissioner, when he called for the purpose of inspecting the report, and upon inquiry therefor, that the amount awarded to him was the sum paid to him; he was thereby induced to omit filing objections to the report, which as matter of fact is conceded to have awarded to 6 him only the sum of $15,805; and the plaintiffs have rested upon their claim to recover back a supposed over-payment for about a period of three years. The answer of the defendant Erben, apprised the plaintiffs that he should interpose these several matters as a defense to their claim; the defense was a just and reasonable one. To have sustained the objection and precluded the defendant Erben from showing this defense, would have been manifest injustice; ■ if the plaintiffs had paid more than was stated as the award to him, and did so having possession of the report under a mistaken notion that he was awarded the sum paid, yet they had not paid to him more than of right and injustice was due and payable to him, and they had misled him and lulled him into silence until long after the period when he could correct the only mistake which was made, the stating a clearly inadequate compensation for what was taken from him. Their proposition seems to be: The land we took from you was worth more than we have paid; the Commissioners and the Street Commissioner’s officers advised you of being entitled to the sum paid; you could have filed objections against the award actually inserted in the report and corrected it by inserting the amount we have paid; we have your land and although you innocently and without fault have accepted what we voluntarily paid, and less than as strict right you might have claimed, yet we claim that the report being confirmed, and it being manifest that in and by it you were awarded only $15,805, the excess over that amount should be refunded. The adoption of this rule works plain wrong and injustice. The least that the plaintiffs should be required to do would be to reinstate him in the position he was when the mistake was made by the Oommissioners in inserting an incorrect amount of award to him, or to enable him now to have the same advantage of showing error in the report that he would have had if the Commissioners and others had not misled him.

The evidence was properly received; it established an issue tendered by the defendant Erben. The rule with respect to voluntary payments is,that if a party has actually paid what the law would not have compelled him to pay, but what in equity and good conscience he ought, he cannot recover it back again in an action for money had and received. The objections taken at the trial were properly overruled, and the exceptions thereto untenable.

Upon the merits as presented by the case upon appeal we then have a payment made on behalf of the plaintiffs, voluntarily, without fraud or deceit or knowledge of the fact on the part of the defendant Erben, more than two years before reclamation is attempted or an assertion of error or mistake on their part; the fact that he was misled byothose acting on behalf of and for the plaintiffs and prevented from correcting the réal mistake that was made in not awarding the amount he received; and that the plaintiffs have received and have been in the enjoyment of his property of the value, if not greater than, of the amount that was paid to him; and applying the rule just given, the plaintiffs having voluntarily paid what the report in terms did not require them to pay, but an amount which in equity and good conscience they should have paid, the plaintiffs cannot recover it back again. It would be in the highest degree an injustice to permit the plaintiffs to assert their claims of payment under a so called mistake under the circumstances detailed in the evidence and found as matters of fact in the present case.

The action as against the defendants The New York Life Insurance and Trust Company could not under any circumstances have been maintained; the company was a mortgagee having a lien for the sum awarded to it; the company received only the amount due to it; the fact-that the checks were payable to the joint order of the defendants perhaps might create the company a disbursing agent of the plaintiffs, to liquidate their-claim and transfer the residue of the amount to the defendant Erben, which the company did; there was no mistake made in the payment to it; nor in my opinion was> there paid to the defendant Erben any sum of money “ not of right due and paycible to him” I think the judgment is correct, and should be affirmed.-- -  