O'Donnell v. Mayor of New York

New York Supreme Court

O'Donnell v. Mayor of New York

13 N.Y.S. 357, 36 N.Y. St. Rep. 988, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1109

DecidedFebruary 11, 1891

StatusPublished

This text of 13 N.Y.S. 357 (O'Donnell v. Mayor of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Donnell v. Mayor of New York, 13 N.Y.S. 357, 36 N.Y. St. Rep. 988, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1109 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Daniels, J.

The right of action relied upon in the complaint is for the recovery of money paid-by the plaintiff to satisfy a judgment and execution against him for the failure to produce his principal, as he had become bound [358]*358to do by his obligation as bail. The principal was afterwards produced in court, pleaded guilty to the indictment, and was thereupon fined, and paid the fine. An application was then made to the court of general sessions in which the indictment had been pending to vacate the judgment under which the plaintiff had paid the money, and for an order directing the refunding of the money paid by the plaintiff as the bail, and that order was made by the court, under the authority of section 1483 of chapter 410 of the Laws of 1882, all the precedent requirements of which appeared to have been complied with. The order was served upon the comptroller, to whom the money had been finally paid by the chamberlain, and a demand was made upon him for its payment more than 30 days previous to the commencement of the suit. The demurrer was sustained on the ground that the complaint failed to state facts presenting a cause óf action. The court held the objection to be without foundation, and overruled the demurrer, and final judgment was after-wards entered in the action. This decision has been objected to as erroneous, for the reason that the plaintiff should be restricted to the proceedings prescribed by this section of the act for the recovery of the money; but the section provides no further remedy than the service of the order on the officer who has received the money. If he declines to pay, as the comptroller has done in this case, the act provides no means which may be taken to oblige him to do so, and the only remedy, therefore, to which resort can then be had is that by way of an action to recover the money. The obstacle in the way of such an action has been removed by vacating the judgment, and the comptroller,, as the-fiscal officer of the city, has no longer any legal right to detain the money from the plaintiff. The case is similar to that presented by the reversal of a judgment after its collection by execution. There the party who has been obliged to make the payment may by action recover back the money so paid. Scholey v. Halsey, 72 N. Y. 578. And this principle has been applied to sustain the right to recover the amount of an erroneous assessment paid after the proceedings have been reversed by the action of the court, (Peyser v. Mayor, 70 N. Y. 497;) and its general application is sanctioned by Mason v. Prendergast, 120 N. Y. 536, 24 N. E. Bep. 806. Bedress by action is all that has been secured to the plaintiff, since the comptroller has declined to pay. The right of the plaintiff to maintain it is reasonably well sustained, and the judgment should be affirmed, with costs. All concur.

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Daniels, J.

The right of action relied upon in the complaint is for the recovery of money paid-by the plaintiff to satisfy a judgment and execution against him for the failure to produce his principal, as he had become bound [358]*358to do by his obligation as bail. The principal was afterwards produced in court, pleaded guilty to the indictment, and was thereupon fined, and paid the fine. An application was then made to the court of general sessions in which the indictment had been pending to vacate the judgment under which the plaintiff had paid the money, and for an order directing the refunding of the money paid by the plaintiff as the bail, and that order was made by the court, under the authority of section 1483 of chapter 410 of the Laws of 1882, all the precedent requirements of which appeared to have been complied with. The order was served upon the comptroller, to whom the money had been finally paid by the chamberlain, and a demand was made upon him for its payment more than 30 days previous to the commencement of the suit. The demurrer was sustained on the ground that the complaint failed to state facts presenting a cause óf action. The court held the objection to be without foundation, and overruled the demurrer, and final judgment was after-wards entered in the action. This decision has been objected to as erroneous, for the reason that the plaintiff should be restricted to the proceedings prescribed by this section of the act for the recovery of the money; but the section provides no further remedy than the service of the order on the officer who has received the money. If he declines to pay, as the comptroller has done in this case, the act provides no means which may be taken to oblige him to do so, and the only remedy, therefore, to which resort can then be had is that by way of an action to recover the money. The obstacle in the way of such an action has been removed by vacating the judgment, and the comptroller,, as the-fiscal officer of the city, has no longer any legal right to detain the money from the plaintiff. The case is similar to that presented by the reversal of a judgment after its collection by execution. There the party who has been obliged to make the payment may by action recover back the money so paid. Scholey v. Halsey, 72 N. Y. 578. And this principle has been applied to sustain the right to recover the amount of an erroneous assessment paid after the proceedings have been reversed by the action of the court, (Peyser v. Mayor, 70 N. Y. 497;) and its general application is sanctioned by Mason v. Prendergast, 120 N. Y. 536, 24 N. E. Bep. 806. Bedress by action is all that has been secured to the plaintiff, since the comptroller has declined to pay. The right of the plaintiff to maintain it is reasonably well sustained, and the judgment should be affirmed, with costs. All concur.

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Bluebook (online)

13 N.Y.S. 357, 36 N.Y. St. Rep. 988, 59 Hun 624, 1891 N.Y. Misc. LEXIS 1109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-mayor-of-new-york-nysupct-1891.

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