Osby v. Conant

New York Supreme Court

Osby v. Conant

5 Lans. 310

CourtNew York Supreme Court

DecidedJune 15, 1871

StatusPublished

Cited by1 cases

This text of 5 Lans. 310 (Osby v. Conant) 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

Osby v. Conant, 5 Lans. 310 (N.Y. Super. Ct. 1871).

Pincite

Opinion

Miller, P. J.

Hpon the facts presented in this action, I am at loss to see how the plaintiff can recover, within the principle of Patrick v. Metcalf (37 N. Y., 333), and Butterworth v. Gould (41 N. Y., 450). In the cases cited, it was held that where there were two claimants for the same money, and the amount paid erroneously to one of these, an [312]*312action will not lie by the one excluded against the former to .•ecover the same. In Patrick v. Metcalf, Parker, J., says: “When two claimants for the same service apply, to the party bound to pay for the same, one of which is recognized as the person entitled to payment, the party excluded derives no right, from the circumstances, to the money paid to his competitor. It is not money received to his use for the payment thus made does not in any respect affect his right still to call on his debtor for payment to himself, and it makes no difference whether such debtor is an individual or the government.” Within this principle it matters not that the plaintiff was entitled to the money in question, and that the defendant had no right whatever' to it. 2STor does it alter the case even if the defendant had knowledge of the plaintiff’s claim. The remedy of the plaintiff, if any he had, was against the county treasurer, and not against the defendant.

The case presented is in no way similar to one where money has been paid by mistake, for which an action will lie i Kingston Bank v. Eltinge, 40 N. Y., 391), and there is no ground for claiming that there was a privity of contract between the parties which entitles the plaintiff to maintain this action.

¡Nor, in my opinion, can the plaintiff recover upon the ground that a cause of action, in the nature of a tort, can be sustained upon the facts presented.

It follows, from the remarks made, that the referee erred in finding for the plaintiff, and for this error the judgment must be reversed and a new trial granted, with posts V abide the event.

New trial granted.

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Miller, P. J.

Hpon the facts presented in this action, I am at loss to see how the plaintiff can recover, within the principle of Patrick v. Metcalf (37 N. Y., 333), and Butterworth v. Gould (41 N. Y., 450). In the cases cited, it was held that where there were two claimants for the same money, and the amount paid erroneously to one of these, an [312]*312action will not lie by the one excluded against the former to .•ecover the same. In Patrick v. Metcalf, Parker, J., says: “When two claimants for the same service apply, to the party bound to pay for the same, one of which is recognized as the person entitled to payment, the party excluded derives no right, from the circumstances, to the money paid to his competitor. It is not money received to his use for the payment thus made does not in any respect affect his right still to call on his debtor for payment to himself, and it makes no difference whether such debtor is an individual or the government.” Within this principle it matters not that the plaintiff was entitled to the money in question, and that the defendant had no right whatever' to it. 2STor does it alter the case even if the defendant had knowledge of the plaintiff’s claim. The remedy of the plaintiff, if any he had, was against the county treasurer, and not against the defendant.

The case presented is in no way similar to one where money has been paid by mistake, for which an action will lie i Kingston Bank v. Eltinge, 40 N. Y., 391), and there is no ground for claiming that there was a privity of contract between the parties which entitles the plaintiff to maintain this action.

¡Nor, in my opinion, can the plaintiff recover upon the ground that a cause of action, in the nature of a tort, can be sustained upon the facts presented.

It follows, from the remarks made, that the referee erred in finding for the plaintiff, and for this error the judgment must be reversed and a new trial granted, with posts V abide the event.

New trial granted.

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Bluebook (online)

5 Lans. 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osby-v-conant-nysupct-1871.

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