Childs v. Childs

Appellate Division of the Supreme Court of New York

Childs v. Childs

263 A.D. 946, 34 N.Y.S.2d 46

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 27, 1942

StatusPublished

Cited by1 cases

This text of 263 A.D. 946 (Childs v. Childs) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Childs v. Childs, 263 A.D. 946, 34 N.Y.S.2d 46 (N.Y. Ct. App. 1942).

Pincite

Opinion

Per Curiam.

The court at Special Term in dismissing the complaint in effect held that the mistake as pleaded was one of law rather than of fact. With that conclusion we do not agree. Sufficient appears to indicate, for the present at least, that the mistake was one of fact rather than of law. After issue is joined, the court may find that the overpayments were voluntarily made under a mistake of law in which event there could not be a .recovery by plaintiff. (Payne v. Witherbee, Sherman & Co., 200 N. Y. 572, 576.) However, it cannot now be determined from the complaint, in advance of a trial, that the mistake was not one of fact.

The order appealed from should be reversed and the motion denied, with leave to the defendant to answer within ten days after service of order.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order unanimously reversed and motion denied, with leave to the defendant to answer within ten days after service of order with notice of entry thereof.

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Per Curiam.

The court at Special Term in dismissing the complaint in effect held that the mistake as pleaded was one of law rather than of fact. With that conclusion we do not agree. Sufficient appears to indicate, for the present at least, that the mistake was one of fact rather than of law. After issue is joined, the court may find that the overpayments were voluntarily made under a mistake of law in which event there could not be a .recovery by plaintiff. (Payne v. Witherbee, Sherman & Co., 200 N. Y. 572, 576.) However, it cannot now be determined from the complaint, in advance of a trial, that the mistake was not one of fact.

The order appealed from should be reversed and the motion denied, with leave to the defendant to answer within ten days after service of order.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.

Order unanimously reversed and motion denied, with leave to the defendant to answer within ten days after service of order with notice of entry thereof.

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Bluebook (online)

263 A.D. 946, 34 N.Y.S.2d 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childs-v-childs-nyappdiv-1942.

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