Opinion
September Term, 1899.
William J. Gardinier, for the appellant.
Eugene E. Sheldon, for the respondent.
The plaintiff encounters two obstacles to his recovery. He has conceded upon the trial that the defendant is not liable individually. It appears from the evidence that he has none of the moneys which the plaintiff claims to have paid to his predecessor through mistake. Those moneys have all been paid, pursuant to the law, either to the State or to the village of Herkimer. The fact that defendant has other moneys in his hands paid to him for like purposes would not authorize him to pay the plaintiff's claim. As to the disposition of that fund the statute has given him explicit directions. It is nowhere provided that any part thereof may be held by the treasurer for the repayment of any moneys paid by mistake by other holders of certificates.
Again, the plaintiff in his complaint predicates his right to recover upon the ground that it was paid upon the demand of the said county treasurer and under a mistake as to the requirements of the Liquor Tax Law (Laws of 1896, chap. 112). It is difficult to see how the plaintiff can escape the rule of law that voluntary payments cannot be recovered. We are referred to no authority which holds that payment made under like circumstances can in any event be held to have been made under duress. A contrary rule of law seems to be held in New v. Village of New Rochelle (91 Hun, 214). We are unable to find any evidence of any mistake of fact upon which the payment was made. Such evidence would not have been admissible under the complaint. In Phelps v. Mayor ( 112 N.Y. 219) Judge GRAY, in writing for the court, says: "The principle is elementary that a party cannot recover back money paid upon the ground that he supposed he was bound in law to pay it." Without allegation or proof that the moneys were paid under a mistake of fact the plaintiff's case seems barren of any substantial ground of recovery.
It becomes unnecessary then to consider the other objections made to the plaintiff's recovery, and it follows that the judgment should be affirmed, with costs.
All concurred, except McLENNAN, J., not sitting.
Judgment affirmed, with costs.