Duncan v. Berlin
The Superior Court of New York City
Appeal from a judgment entered upon findings of law and fact, made by Justice Barbour, on the trial before him, without a jury, on the 22d of July, 1867. The action was brought to recover $1000 for money paid, by mistake,'to the sheriff, under an' erroneous belief that the same was then due from the plaintiffs to a person who was a defendant in an action in which an attachment had been issued in favor of the defendants, as plaintiffs, which had been paid over by the sheriff…
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Appeal from a judgment entered upon findings of law and fact, made by Justice Barbour, on the trial before him, without a jury, on the 22d of July, 1867. The action was brought to recover $1000 for money paid, by mistake,'to the sheriff, under an' erroneous belief that the same was then due from the plaintiffs to a person who was a defendant in an action in which an attachment had been issued in favor of the defendants, as plaintiffs, which had been paid over by the sheriff to the latter on an execution issued in the same action. The cause was tried without a jury. On the 16th of January,…
1Opinion of the CourtBarbour, J.
As the sheriff retained in his hands much more, out of the gross sum received by him from the plaintiffs, than he was entitled to if the $1000 is to be returned as not properly collected, and as the defendants, therefore, will not, in that case, have been paid out of such aggregate sum, the whole amount they have a right to claim, it is quite apparent that such sheriff is a necessary party to any suit brought by the plaintiffs for the recovery of the $1000 so paid to him by them, through mistake, in . order that he may be compelled to contribute, for such portion of that sum as he still…
2Cases cited12 opinions
- Bank of Commerce v. . Union BankNew York Court of Appeals · 1850
- Manufacturers' & Traders' Bank v. HazardNew York Court of Appeals · 1864
- Davis & Palmer v. Mayor of New YorkThe Superior Court of New York City · 1853
- Shaver v. BrainardNew York Supreme Court · 1859
- Utica Bank v. Van GiesonNew York Supreme Court · 1821
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3Cited by1 opinion
- Fowler v. DuvalSupreme Court of Louisiana · 1856