p. 988Joseph O'Donnell, Resp’t, v. The Mayor, etc., of New York, App’lt.(Supreme Court, General Term, First Department,Filed February 11, 1891.)Headnote
Bail—Recovery of money paid on forfeited recognizance.Where a judgment entered on a forfeited recognizance has been vacated and the moneys paid thereon ordered repaid, and the officer who received the moneys refuses to pay, an action will lie to recover such moneys. Section 1483 of the consolidation act of 1882 provides no further remedy than the service of the order on the officer who received the money.
Appeal from judgment overruling a demurrer to the complaint.
William H. Clark, for app’lt; Alex. Thain, for resp't.
The right of action relied upon in the complaint is for the recovery of money paid by the plaintiff to satisfy a judgment and execution against him for the failure to produce his principal, as he had become bound to do by his obligation as bail. The principal was afterwards produced in court, pleaded guilty to the indictment, and was thereupon fined, and paid the fine. An application was then made to the court of. general sessions, in which the indictment had been pending, to vacate the judgment under which the plaintiff had paid the money, and for an order directing the refunding of the money paid by the plaintiff as the bail. And that order was made by tiie court, under the authority of § 1483 of chap. 410 of the laws of 1882, all the precedent requirements of which to have been complied with.
The order was served upon the comptroller, to whom the money had been finally paid by the chamberlain, and a demand was made upon him for its payment more than thirty days previous
p. 989to the commencement of the suit. The demurrer was served on the ground that the complaint failed to state facts presenting a cause of action. The court held the objection to be without foundation, and overruled the demurrer. And final judgment was afterwards entered in the action. This decision has been objected to as erroneous, for the reason that the plaintiff should be restricted to the proceedings prescribed by this section of the act for the recovery of the money. But the section provides no further remedy than the service of the order on the officer who has received the money. If he declines to pay, as the comptroller has done in this case, the act provides no means which may be taken to oblige him to do so. And the only remedy therefore to to which resort can then be had, is that by way of an action to recover the money. The obstacle in the way of such an action has been removed by vacating the judgment, and the comptroller as the fiscal officer of the city has no longer any legal right to retain the money from the plaintiff. The case is similar to that presented by the reversal of a judgment after its collection by execution. There the party who has been obliged to make the payment may by action recover back the money so paid.
Scholey v. Halsey, 72 N. Y., 578 . And this principle has been applied to sustain the right to recover the amount of an erroneous assessment paid, after the proceedings have been reversed by the action of the court.
Peyser v. Mayor,
etc., 70 N. Y., 497 . And its general application is sanctioned by
Mason v.
Prendergast, 120 N. Y., 536 ; 31 N. Y. State Rep., 497. Bedress by action is all that has been secured to the plaintiff since the comptroller has declined to pay. The right of the plaintiff to maintain it is reasonably well sustained and the judgment should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concur.