Donohue v. Mayor of New York , 17 N.Y. Sup. Ct. 37 ( 1877 )

Gilbert, J.:

The case clearly shows that the plaintiff received the over-payment which is the subject of the counter-claim, and the referee should have so found. The error arose from the fact that the engineer in charge of the work done by the plaintiff and his assignor, certified seventy-five cents instead of fifty cents per yard for filling, the latter sum being the contract-price. The engineer had no authority to give a certificate, nor the board of trastees to make a payment in excess of the contract-price. They were respectively mere agents of the corporation, and their principal was not bound by their unauthorized acts. Such a payment is not a voluntary one by the corporation. The case of Board of Supervisors v. Ellis (59 N. Y., 620) is a full authority on this point.

It appears that the plaintiff received the over-payment in the form of negotiable certificates of indebtedness, whereby the corporation became bound to pay the amount thereof at a future day, and that he immediately transferred them to a purchaser in good faith and for value. The corporation has thus been deprived by the act of the plaintiff of any defense to its liability on the certificates (Seybel v. Nat. Currency Bk., 54 N. Y., 298; McSpedon v. Troy City Bh., 3 Abb. Ct. App. Dec., 133), and such act is conclusive that the plaintiff appropriated them as a payment upon his contract. (Herring v. Sanger, 3 Johns. Gas., 72; Elwood v. Deifendorf, 5 Barb., 408.) But, whether treated as a technical payment or not, the plaintiff is clearly liable for the value of the certificates by reason of his having parted with them, and so put it out of his power to return them to the defendant.

The judgment must be reversed, the order of reference vacated and a new trial granted, with costs to abide the event.

Barnard, P. J., and Dykhan, J., concurred.

Judgment reversed and new trial granted at Circuit.