-cepted, and on the 29th of December another draft at one month, antedated to December 1, 1892, was sent to the defendants, and not accepted; and thereupon this action was brought.

It is urged upon the part of the appellants that the complaint - ought to have been dismissed upon the ground that, while it alleges an agreement by defendants to accept a one month's draft, it also alleges that said draft was due one month from December 1st, and was not presented to the defendants for acceptance until December 29th; that the authorization from the defendant was to draw on them for one month, and that that meant one month's sight, and not one month from date. In support of this proposition, attention is called to the case of Bank v. Mcfarlan, 5 Hill, 432. In that case the defendant had sent to W. H. De Forest & Co. a letter in the following language:

"Gentlemen: I hereby authorize you to draw on me at ninety days, from time to time, for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed three thousand dollars; the above letter of credit to be good and binding for one year from this date." -And it was held that the only authority to draw was at 90 days' sight, and not 90 days from date, upon the ground that the object of exacting a draft at 90 days was to give the drawee 90 days to prepare for payment of the draft after he learned that it was in existence, which was entirely in harmony with the authorization to draw. It was a letter of credit, drafts on which were to be made from time to time at uncertain intervals, and, unless this construction was placed upon it, as the court said, "the words "90 days' in the letter would be of no practical importance." But the case at bar is entirely different. The defendants authorizing the - draft upon them knew that the money was to be paid on the 1st December, when Morse & Crombie's note fell due, and they promised Morse & Crombie that they would pay the draft in one month, -plainly, in one month from the time the money was paid upon Morse & Crombie's note. It was upon this draft that the money was expected to be raised to pay the note then falling due, and which the defendants were to receive the benefit of. It was undoubtedly understood by them that Morse & Crombie would draw their draft upon the 1st of December, and that it should have one month to run. But it was never intended that that draft should be payable one month from sight, and no such construction can be placed upon the letter written by them on this subject. If Morse & Crombie had drawn the draft for one month from date at the time their note was paid, there can be no question but they would have been acting within the letter of authorization, and that the defendants would have been bound as acceptors of such draft. But it is said that the bank refused their offer in the first instance. The bank advanced the money upon the faith of an agreement of the defendants to accept a draft of Morse & Crombie. It is apparent that the officers of the plaintiff did not understand the length of time of the draft which was to be drawn, and they probably would not have agreed to accept such a draft had they noticed the fact in the letter. But they made the payment upon the faith

of a promise of the defendants to receipt a draft; and the fact that they were disappointed when they learned the length of time such draft was to run in no wise released the defendants from their obligation. The plaintiffs parted with their money upon the promise of the defendants; and it certainly cannot be claimed that they must lose it because they were ignorant of the full import of the promise. They are entitled to the full benefit of the contract, even though if, at the time they advanced the money, they had known its full import, they would have refused so to do. The most that defendants can claim is that the stipulations in the contract which were favorable to them, they should have the benefit of. We are of opinion, therefore, that it was the understanding of the defendants that the draft to be drawn pursuant to their authorization was to bear date on the 1st of December, 1892, and to be payable in one month from such date. And it was immaterial when such draft was drawn. The moment that it came into existence, the promise to accept attached to it had become an acceptance; the plaintiffs having advanced the money upon the faith of an acceptance by the defendants of a draft to be drawn, although they may have been ignorant, at the time they made the advance, of the length of time such draft had to run. The judg ment and order should be affirmed, with costs. All concur.

CONVERSE et al. v. SICKLES, Sheriff.

(Supreme Court, General Term, First Department. December 15, 1893.) PAYMENT Under JudgMENT-RIGHT TO RECOVER.

Goods sold by plaintiff to one F. were taken, by defendant, as sheriff, under execution against F. Plaintiff elected to rescind the sale for fraud, and sued the sheriff in replevin. On the trial, plaintiff stated that he could not prove a demand for the goods from defendant before commencing the action, whereupon the court directed a verdict for defendant, and judgment was entered thereon. Plaintiff did not appeal from the judgment, or move to set it aside, but paid the amount of the execution against F., stating that he did so under duress, and received the goods from the sheriff. Held, that plaintiff could not afterwards recover the money so paid.

Appeal from special term, New York county.

Action by Edmund W. Converse and others against Daniel E. Sickles, as sheriff of the city and county of New York. The complaint was dismissed, and plaintiffs appeal. Affirmed. Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER,

JJ.

Carter, Hughes & Kellogg, (Frederic R. Kellogg, of counsel,) for appellants.

Hays & Greenbaum, (A. Blumenstiel, of counsel,) for respondent.

PARKER, J. The defendant, as sheriff of the city and county of New York, about the 1st of May, 1890, took possession of the entire stock of goods then possessed by Feckheimer, Rau & Co., under executions issued against them. Such goods included certain

merchandise, which the plaintiffs contend were procured from them by Feckheimer, Rau & Co., through fraud and deceit. Thereafter these plaintiffs elected to rescind the sales by reason of the alleged frauds, and commenced two replevin suits to recover them from the defendant, under which they obtained possession of the goods, and afterwards sold them. Subsequently, the actions coming on for trial, plaintiffs' counsel stated, in his opening, that he would not be able to prove that plaintiffs had demanded possession of the goods. from the sheriff before their commencement. The court held, following Goodwin v. Wertheimer, 99 N. Y. 149, 1 N. E. 404, that, in the absence of such proof, plaintiffs could not recover, and in each action directed the jury to find a verdict in favor of the defendant, for the return of the goods, or their value. In pursuance of such direction, a judgment in each case was duly entered, execution thereon being stayed for a specified time. At the expiration of the period for which a stay was granted, the plaintiffs, having reached the conclusion that an appeal could not be successfully prosecuted, paid to the sheriff the amounts of the two judgments, aggregating $5,312.99, at the same time serving upon the sheriff a written protest, in which they alleged that payment was made under duress of execution and judgment, and demanded an immediate return of the sum so paid. Their demand being refused, this suit was commenced to compel restitution; the grounds assigned as a basis for the recovery being that, the goods having been obtained from them by fraud and deceit, they were entitled to their return from Feckheimer, Rau & Co., or the sheriff, and, inasmuch as the goods had been disposed of, the plaintiffs assert the right to charge the sheriff, as trustee of the money in his hands, representing the goods.

The trial resulted, as we think correctly, in a dismissal of the complaint upon the merits. The general rule is that money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the defendant. Insurance Co. v. Robinson, 82 Pa. St. 357--359; Insurance Co. v. Heath, 95 Pa. St. 333--340; 6 Amer. & Eng. Enc. Law, 75, and cases cited. An exception to the rule is where the money is paid in satisfaction of an erroneous judgment, which is subsequently reversed or set aside. In such case the money paid may be recovered back. Scholey v. Halsey, 72 N. Y. 578; Peyser v. Mayor, etc., 70 N. Y. 497; Insurance Co. v. Heath,. supra. And it is not necessary, in order to maintain the action, that the payment should have been coerced by execution; it is suffi cient if paid after judgment. Lott v. Swezey, 29 Barb. 87; Scholey v. Halsey, supra; Peyser v. Mayor, etc., supra. The cases cited by the appellants are not in conflict with the rule asserted. Aside from those already referred to, they call attention to Bank of the Commonwealth v. Mayor, etc., 43 N. Y. 188; Phelps v. Mayor, etc., 112 N. Y. 216, 19 N. E. 408; and Vaughn v. Village of Port Chester, (N. Y. App.) 32 N. E. 137. In Bank of the Commonwealth v. Mayor, etc., a municipal corporation collected a tax from the plaintiff, which was unlawfully assessed; and, the assessment being subsequently annulled, in proceedings taken for that purpose, it was held that the corporation was bound to refund the money which it had unlawfully

collected. In Phelps v. Mayor, etc., the right to recover the money paid on a void assessment was denied, on the ground that the ordinance was on its face illegal and void, and payment without coercion of assessment was therefore a mistake of law, funishing no basis for a recovery. In Vaughn's Case the assessment was invalid, and, the trustees of the municipality having passed a resolution for an advertisement and sale of all property upon which the assessment had not been collected, Vaughn offered to deposit sufficient money to abide the result of a test suit as to the validity of the assessment. His offer being denied, he paid the amount under protest. Subsequently, the assessment was adjudged illegal, and the court held that the payment was made under such coercion of law as would permit a recovery back of the moneys. In the case under consideration the judgment was legally rendered. No effort was made to reverse it on appeal, nor was it attacked by a motion to set it aside. The money paid was therefore in satisfaction of a valid judgment, and, under the rule established by the cases to which we have referred, there can be no recovery by the plaintiffs of the sum so paid. judgment should be affirmed, with costs. All concur.

The

DEXTER v. ALFRED.

(Supreme Court, General Term, Third Department. December 14, 1893.)

1. TRESPASS-EVIDENCE-LICENSE FROM FORMER OWNER.

In an action for trespass on land, evidence that a prior owner had given plaintiff a license to go on the locus in quo is irrelevant, where it appears that plaintiff, before the alleged trespass, notified defendant that he was the owner.

2. COSTS-CASE INVOLVING TITLE TO LAND.

In an action for trespass on land, the answer did not deny plaintiff's title, but alleged that defendant committed the acts complained of by direction of the highway commissioner, who had proceeded to open a highway on the locus in quo, and that defendant believed it to be a lawful highway, as the statute under which the commissioner was acting had not then been declared unconstitutional. Held, that the answer did not raise any question of title, and therefore defendant was entitled to costs where plaintiff only recovered a nominal verdict. Per Putnam, J.

Appeal from circuit court, Franklin county.

Action by Orrando P. Dexter against Warren Joseph Alfred for trespass on land. Judgment was entered on a verdict in favor of plaintiff for six cents, and costs were awarded to defendant, and plaintiff appeals. Reversed.

For former report, see 19 N. Y. Supp. 770.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. John P. Badger, for appellant.

Cantwell & Cantwell, for respondent.

PUTNAM, J. This action was brought to recover damages for 33 alleged unlawful trespasses. The defendant, in his answer, does not deny plaintiff's title to the premises described in the complaint,

and admits one or more trespasses, but alleges that, in pursuance of chapter 114 of the Laws of 1890, one Henry Foster, commissioner of highways of the town of Waverly, proceeded to lay out a highway where the alleged trespasses were committed, taking the steps required by statute to lay out such highway, and the defendant, believing that the same was legally laid out, and before the court had decided the said act under which the proceedings were taken unconstitutional, was directed by said commissioner to cut some fallen trees at said place, and, in obedience to said direction, entered upon the premises on one occasion. Other matters are set up in the answer in the way of mitigation of damages. The jury rendered a verdict for the plaintiff for six cents damages, and the defendant was awarded the costs of the action.

The plaintiff, on this appeal, claims that the question of title was raised by the answer and upon the trial, and hence that, recovering a verdict for six cents, he was entitled to the costs of the action. We think that, under the answer, the plaintiff's title to the premises in question was not controverted. The allegation in the complaint that plaintiff was the owner of said premises was not denied in the answer, and hence such allegation stands admitted in the pleading. Nor does the answer allege that the place where the alleged trespasses were committed was a legal highway. It alleges that the highway was laid out under chapter 114 of the Laws of 1890; and "that this defendant verily believed that said highway so laid out as aforesaid was a legal highway, and properly opened to public travel; and that, while said defendant so thought, and before the courts had passed upon the constitutionality of said act, the said commissioner of highways ordered and commanded this defendant to cut some fallen trees out of said highway, which the defendant did, in or about the latter part of January, 1890, in pursuance of said command." It is evident that the answer does not mean to aver that there was a legal highway where the alleged trespasses were committed, but rather that defendant at the time so thought. Nor was the question of title raised on the trial. It is difficult to see how it could be raised under the pleading. As the answer, therefore, does not controvert plaintiff's title to the premises, or allege a legal highway, it follows that, plaintiff recovering only nominal damages, defendant was entitled to recover the costs of the action.

We think, however, that some evidence was improperly received on the trial. The witness Webb testified as follows:

"I recollect an occasion, a short time before Mr. Dexter bought this Richard Giles' lot in question, when there was conversation between Mr. Alfred and Richard Giles about going across the premises. It was in my office. Giles was then the owner of the land. I think it was along in the fall of 1889, or about that time. Q. State the substance of the conversation. (Objected to by plaintiff, as incompetent, immaterial, and hearsay. Objection overruled. Plaintiff excepted.) A. Mr. Giles and Mr. Alfred were in my office in relation to this particular matter. that he could go across over his land, draw logs instructions to draw up a writing to that effect. out the evidence, on the ground that, at most, it was only a license, which was revoked by the sale to Dexter, and the evidence was immaterial and v.26 N.y.s.no.4-38

Mr. Giles told Mr. Alfred right along, and gave me (Plaintiff moved to strike