The Buffalo, New York and Erie Railroad Company, Appellant, v. John A. Stevens, Respondent

The Buffalo, New York and Erie Railroad Company, Appellant, v. John A. Stevens, Respondent. (Argued October 3, 1872; decided January term, 1873.) This action was brought to recover back the sum of $1,081 alleged to have been paid by mistake by plaintiff to defendant. The mistake was alleged to have occurred in settling the accounts of defendant, as trustee for bondholders, under a certain mortgage made by the Buffalo City Railroad to defendant as such trustee. That mortgage was foreclosed by defendant, and after judgment plaintiff, as owner of the equity of redemption, settled, paying defendant the item in dispute which the latter claimed under the judgment. Held, 1st. That there was no mistake as to the provisions of the judgment ; and the payment having been voluntarily made, could not be recovered back; 2d. That- by the decree defendant was entitled to the sum in question. This was based upon the authority of a former case in this court. In the matter of the B., N. Y. dé E. R. R'. Go. for an accounting with Stevens, as trustee, etc., wherein this portion of the judgment was construed, which construction the court held binding. A. P. Laning for the appellant. John Ganson for the respondent. [MAJORITY — Hunt, C.,] Hunt, C., reads for affirmance. All concur. Order affirmed, and judgment absolute ordered against plaintiff.