William B. Duncan et al., Appellants, v. Jacob Berlin et al., Respondents

William B. Duncan et al., Appellants, v. Jacob Berlin et al., Respondents. Where money is paid under a mistake of fact, negligence in making the mistake does not prevent the party paying from recovering it back, if the other party has not been prejudiced. (Submitted June 22, 1871; decided September 5, 1871.) Plaintiffs, bankers in Rew York, had an account with H. Blagge & Co., of Texas, and supposed there was a balance due that firm. Defendants, creditors of B. & Co., attached the balance, obtained judgment, and plaintiffs paid over to the sheriff, bn the execution, under protest, $2,924.33. Upon settling the accounts, it was discovered that but $1,000 was due on the account. To recover back the $1,924.33, this action was brought. Judgment was given for defendants, which was affirmed by the General Term. W. D. White, for appellants. F. O. Gantine, for respondents. [MAJORITY — Rapallo, J.,] Rapallo, J., reads opinion for reversal and new trial. All concur. Judgment reversed.